Expedited Review of Proposed Reduction in Force (RIF)

Reduction in force checklists are plentiful, but what happens if you have some concerns and are under pressure to produce your proposed plan for Board approval with two weeks? While standard checklists are useful, you need to check in with your employment attorney to address your concerns and make sure the RIF you implement will not lead to discriminatory action.

One of our clients was in just this position and reached out to Chandra Davis and Raquel Crump of The Employment Law Solution for advice. Within four business days, ELS attorneys worked with the client to review concerns posed by the reorganization and company-wide RIF plan. Here are some useful highlights based on the recent RIF advice project:

1. A careful review of your employee population and individuals in protected classifications (race, sex, age, disability, religion, national origin, etc.) may lead you to conduct a standard deviation (i.e., measuring the expected terminations against the actual terminations) analysis for your RIF. The measurements may be the basis for you to then reconsider who is pegged for termination in specific categories such as race, sex or age.
2. Possible discriminatory impact may suggest a reconsideration of individuals pegged for termination. In many cases, the reconsideration is not warranted and your attorney may be of assistance in substantiating and documenting the reason(s) why a particular individual was selected for RIF beyond a protected category.
3. Once the RFI plan is approved, you may consider having your attorney review communications prior to release – this may help you avoid problems and insure that supervisors and managers have the training and proper guidance before they engage in communications with employees regarding the RIF.
4. As you move toward and through implementation of the RIF, your attorney can review proposed severance agreements and assist with any negotiations of individual agreements.

In summary:

• Conduct a careful review of your employee population and individuals in protected classifications and conduct an analysis, like a standard deviation.
• Substantiate and document the reason(s) why a particular individual was selected for RIF beyond the protected classification.
• Have your attorney review communications regarding the RIF prior to release as well as proposed severance agreements and assist with any negotiations of individual agreements.