Layoffs open employers up to the possibility of lawsuits under a wide range of laws, including the Worker Adjustment and Retraining Notification (WARN) Act, state "mini-WARN" requirements and the Older Workers Benefit Protection Act (OWBPA). Nonetheless, employers can adopt some practices to limit their potential liability. Here are a few examples of such practices in this second of a three-part series on layoffs.

Ted Hollis, an attorney with Quarles & Brady in Indianapolis, identified a number of steps employers can take to limit liability, including:

• Identify the business reasons for the layoffs and the documentation that exists supporting those reasons; secure copies of that documentation in a layoff planning file.
• Consider how the size of the layoff will be determined—for example, a percentage of the overall workforce, a specific number of employees or a budget cut level.
• Determine when the layoffs will occur—all at once or in stages.
• Consider whether the reduction in force (RIF) will likely trigger a WARN event, or if it can be structured to avoid one.
• Consider possible benefits and detriments to allowing employees to self-select by volunteering for the reduction, and of offering severance release agreements.
• Carefully determine criteria that will be used to select individuals recommended for inclusion in the RIF.
• Identify decision-makers who will select affected employees and provide an internal memorandum that describes the process and criteria to be...

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