The clock is ticking with most reductions in force (RIFs), but employers should still make time to ensure compliance with anti-discrimination laws, including the Age Discrimination in Employment Act (ADEA) and Title VII of the Civil Rights Act of 1964.
With RIFs, employers will often have to choose between workers whose performance ratings are essentially the same, noted David Baffa, an attorney with Seyfarth in Chicago. “In those situations, it is usually necessary to develop a more precise way to evaluate relative performance—that is, how one person’s specific skills, performance, or attributes compare to a colleague, when both have generally good performance,” Baffa said.
Employers may use a methodology that makes the most sense for their business so long as it is reasonable and applied fairly, he noted.
“What employers should avoid is: 1) making a fine distinction in performance comparison that is not documented or justified, or 2) making a fine distinction in performance comparison that is contradicted or unsupported by the most recent formal review,” Baffa said.
Employers should take several steps to reduce their potential legal exposure due to a RIF, said Joe Schmitt, an attorney with Nilan Johnson Lewis in Minneapolis.
First, companies should develop criteria for making selections—ideally based on objective data—in advance of making any selections. Schmitt said examples include performance review scores, time in role, and tenure with the...
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