The New York Optimist
November 2008
DON’T GET “RIFFED” OFF
by Neil Patrick Parent, Esq.
Further in our series on the Economic Crisis: In this environment of mass layoffs (in
business euphemistically referred to as Reductions in Force, or “RIF"s) at all levels in all
industries throughout the country, the belief commonly held by most workers and some
employers, especially in states where employment is “at will” (i.e., terminable at the will
of the employer without notice or severance for non-contract jobs) is that when you’re
laid off, that’s it. It’s an over and done deal with no recourse for the employee. You take
what the employer is willing to give you, if anything, by way of severance and you can’t
look back. For the most part, that’s true. But even while conducting a RIF, employers
make choices on who is to go and who is to stay, and those choices are governed by laws
that prohibit discrimination.
If you are young (under 40), physically and mentally able, were laid of with an ample
number of fellow workers of both sexes and a combination of ethnicities and national
origins (and with no apparent distinction among sexual orientations) you may need to
read no further. For you, the foregoing is most likely true and you may have no recourse
but get thee to the unemployment office. But if you are over 39, are a woman (or the
only man, or one of just a few men in a largely female workforce for example), are
physically or mentally disabled, are the only non-white, or one of just a few, in the group
let go (and, maybe, gay, lesbian or transgender), then you might benefit by a visit to an
employment lawyer and a peek into the decision process your employer used to
determine who got “riffed.
There are several laws that protect employees from discrimination in the workplace, and
this may extend to discrimination in selecting employees to be terminated in a RIF:
Title VII of the Civil Rights Act of 1964 (Title VII) prohibits employment
discrimination based on race, color, religion, sex (but not sexual orientation) or
national origin;
The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals
who are 40 years of age or older;
Title I and Title V of the Americans with Disabilities Act of 1990 (ADA) prohibit
employment discrimination against qualified individuals with disabilities in the
private sector and in state and local governments.
Civil Rights Act OF 1964
All of the foregoing create so-
called “protected classes” among
people who fit the
descriptions. Most of them only
apply to private sector employers
(whether for profit or
not-for-profit). However, certain
portions of the ADA apply to state
and local
governments, and portions of the
Rehabilitation Act of 1973 prohibit
discrimination
against qualified individuals with
disabilities who work in the
federal government.
An employer may not use a RIF as cover for getting rid of people on a discriminatory
basis. If it can be demonstrated that individuals were singled out to be included in a RIF
because of characteristics that would have been protected under the relevant laws
referred to in this article, it is still unlawful discrimination. Most importantly, the Civil
Rights Act of 1991 provides monetary damages in cases of intentional employment
discrimination. In our office, I recall a situation concerning a RIF of over three hundred
employees. When we more closely examined the process on behalf of our client, a
married woman
executive over fifty with grown children, we discovered a few interesting things.
Although men and women were evenly represented in the total number of layoffs, in her
area of responsibility and at her level, she and one other woman were the only females
out of seven employees to be let go. Not enough to go on there.
But, it turns out that a few years earlier she had complained to the company’s Human
Resources Department of sexual discrimination by the Vice President who had since
become CEO of the company and who had finalized the list of people to be laid off.
Probably too stale for a retaliation claim, but still something that might add weight to the
argument she had been singled out for
inclusion on the list. She was not the only person over fifty to be let go, but she was the only one in her group and at her level. There is a presumption of age
discrimination whenever someone forty or over is fired, and that means that the employer has to show some other compelling reason or justification for the
termination. This might have given us something to chew on. But the smoking gun was discovered when we found out from another employee we questioned
that the night before the list was finalized, our client was not on it, but by the next day, the name of one person had been taken off the list and her name had been
added in his place. A little further digging revealed that the person taken off the list was in his early thirties, had three school-age kids and a stay-at-home wife.
(Even if we didn’t have witnesses who overheard the CEO expressing concern for poor “young Sam, with his three kids an unemployed wife to care for” while
our client had “no kids at home and a husband who could support her” we could still have made a pretty strong circumstantial case.)

Armed with these facts, we confronted the company’s general counsel and, without having to go to court and within a matter of weeks, had crafted out a
settlement giving our client a very generous severance package, worth several times what she’d been given in the RIF (which had been unusually generous in the
first place). Similarly, we had a case where our client was the only American among a group of officers laid off by in the United States subsidiary of a European
company. Oh, and if your entire company is shut down and everyone is laid off, it can be fairly said that no one was discriminated against. That said, there are
statutes that provide mandatory notices such as the federal Worker Adjustment and Retraining Notification (“WARN”) Act. This law was passed in the nineteen
eighties when foreign companies were buying American businesses and suddenly closing their plants and moving operations overseas (hence, its other name, the
“Plant Closing Law”). Few people realize that it also applies to other types of companies that employ more than 100 people and close a site resulting in job losses
to at least fifty people (or, from fifty people to four hundred ninety nine people, a third of the workforce employed at the site). As lawyers, we were nearly
stricken dumb recently when one of the top law firms in the country decided to dissolve and failed to give WARN notice to their employees, who promptly filed
a class action suit against them.

The point of all this is, if you’ve been riffed and you believe that you are in a protected class, it behooves you to take a closer look at those who were kept and
the others who were let go, to see if you might have a case. If you have any doubt, consult an employment lawyer. Most lawyers in the field will provide a one-
hour consultation for a fraction of their usually hourly rate. Most employment lawyers, especially those representing executives, typically work on an hourly rate,
which may vary depending on the experience of the lawyer, the size of the law firm, and the city (or even the part of the city) in which the firm’s offices are
located.

In a particularly compelling case, or one involving an entire group of employees that have been discriminated against, the lawyers may work for a partial
contingency payment, where you pay a certain negotiated amount, for example to cover the cost of preparing and filing a complaint, but the bulk of their fees are
paid out of any damage award you might receive. Bear in mind, that these are not personal injury or medical malpractice cases. The size of your renegotiated
severance or damages is not likely to make you or your lawyer rich. Nevertheless, there are lawyers that will consider taking extremely compelling cases on a full
contingency fee basis. Mr. Parent is a partner in the Manhattan-based law firm of Reavis Parent Lehrer LLP (affiliates in Los Angeles and San Francisco) which
among its practice areas, has a concentration in employment law and represents both individuals and companies in connection with a wide range of employment
matters and dispute resolution.
Lyndon B. Johnson signs the Civil Rights
Act of 1964. Among the guests behind him
is Martin Luther King, Jr.