Layoffs Can Lead to Unlawful Termination Claims

Down Economy: Layoffs Can Lead to Unlawful Termination Claims
What Businesses Need to Know to Protect Against These Lawsuits

By Jessica Hawthorne, Special to California Business Law Blog

By any measure, it’s a pretty rough economy out there and inevitably, there have been and will continue to be layoffs – a process that’s an emotional and complicated procedure, and no less so than during tough economic times.

So what do employers need to know to protect themselves from wrongful termination lawsuits before they are forced to lay off members of their workforce?

The truth is that no one procedure guarantees businesses freedom from exposure to wrongful discharge liability or, even in the absence of liability, prevention of the filing of a wrongful termination action by an employee. But there are a number of things that can be done to mitigate potential issues:

• Businesses should have all new employees sign agreements at the very beginning of employment that protects their status as an at-will employee.
• Standardize termination procedures in a way that maximizes company protection from wrongful termination suits, and ensures that the procedures are consistently applied.
• Train supervisors thoroughly in the area of protecting the at-will nature of employment and to follow all company policies especially related to terminations and layoffs.
• If your company is considering a layoff, be sure to establish objective, nondiscriminatory criteria for selecting the employees to layoff.
• If termination of an employee becomes necessary: do not make the employee's situation so miserable that he or she resigns just to get away.

If an employee feels singled out during a layoff or was unaware of performance issues before being terminated, they may also file a suit for wrongful discharge in violation of an express state or federal government public policy.

Further, be careful and consult with legal counsel before laying off employees with actual or perceived disabilities, those who have just returned from a protective leave of absence, and even those who have reported inappropriate activity such as harassment or safety violations. These employees may have or believe they have more rights than other employees. And angry employees or ones who feel wronged are more likely to sue.

In addition, the federal Worker Adjustment and Retraining Notification (WARN) Act and comparable state law require businesses to provide written notice to employees before laying off a significant portion of their workforce.

Unfortunately, there are literally layers of laws that deal with layoffs and terminations, which can make navigating this area of employment law a potential minefield. But if employers act in good faith, make their policies clear and offer ample notification of pending action, the likelihood of a wrongful termination lawsuit succeeding is minimal.

Jessica Hawthorne is an employment attorney the California Chamber of Commerce. More information on terminating employment and many other workplace issues can be found at www.HRCalifornia.com.

Birmingham Angel Network adds a new board sponsor

For BAN the hits just keep on coming.

I am very pleased to announce that Warren, Averett, Kimbrough & Marino, LLC has signed on as the Birmingham Angel Network's fifth sponsoring board member. Warren Averett is a nationally recognized accounting firm ranking among the nation’s largest firms and serving some of the South’s largest companies.

Warren Averett will be represented by Al Murray a member in the firm's Birmingham office. Al has over 20 years experience with closely-held businesses in all areas of accounting, taxation and business consulting. He has extensive experience with audits of retirement plans, manufacturers and distributors, not-for-profits, healthcare organizations, contractors and start up businesses.

Welcome Al.

Competitions provide opportunity

This week we have had two significant opportunities announced for local startups.

Alabama Launchpad announced the begining of the 2008-09 business plan competition and the Venture Club opened nominations for this years Accelerator Program.

The two can be reached at:

Alabama Launchpad - Plan Competition , and

Venture Club - Accelerator

No recession? Strong U.S. growth tops estimates

It is conventional wisdom today that all of the United States of America, including California, are in a recession. However, as is often the case, the conventional wisdom appears to be incorrect:

A recession is typically defined as two consecutive quarters of negative economic growth, but the just-released second quarter 2008 U.S. economic growth rate numbers show a healthy growth rate of 3.3%, akin to the average rate of growth in the Reagan and Clinton administration "boom" years, and topping estimates of 1.9% (which accounted for the economic stimulus rebate checks). Q1 2008's growth rate was weak but positive, and Q4 2007 was recorded at negative 0.2% (-0.2%).

The U.S. Labor Department also reported a decrease in new unemployment claims numbers.

Arguably, one upshot of these figures is that those who believe now is not a good time to start or expand a business may not be correct.

See also UCLA forecast sees no California recession, San Francisco Chronicle, March 11, 2008:

[T]he UCLA Anderson Forecast predict that damage from the collapse of housing will be contained and that the state's feeble economy will avoid a headlong dive into negative territory.

Real estate weakness will remain a significant drag on the economy, leaving us treading water in 2008, but not slipping under the waves into recession," the report concludes.

December 2008 Update: An official U.S. recession was announced, with its effective start being named as December 2007.

Counterintuitive Ways to Save Money as Applied to Legal Services

TheStreet.com recently posted an article by Jeffrey Strain entitled 7 Counterintuitive Ways to Improve Finances, some of the advice in which applies, in the opinion of this blog's author, to something few people enjoy, but which can end up saving money in the long run; that is, spending money on legal fees:

Earnest attempts to save money here and there don't always add up to much. When traditional methods fail, it's time to consider a few counterintuitive options.

Spend Money

If you want to get the most for your money, you are going to have to spend. One of the biggest mistakes people make when they are trying to get their finances in order is to stop spending money alogether.

Not all spending is the same. You should limit unnecessary purchases, but spending on essential upkeep, preventive measures and items that will save money in the long run is vital for getting and keeping your finances in order. Scrimp now on items and services that can help prevent larger expenses in the long run--such as routine car maintenance and energy-saving bulbs--and you could pay for it later. . . .

Think estate planning for disability and death, forming a corporation or limited liability company for your business. Having proper Web site terms of use, privacy policies, and vendor and employment contracts in place before you are sued.

Don't Buy What Is Cheapest

"Cheap" rarely means "the best value." To get the most out of your hard-earned money, you must think value rather than price. A car that is inexpensive, but costs a lot to drive and needs frequent repairs has less value than a car with a higher price tag but costs less to run and maintain.

This concept of buying value over price can be applied to anything and will mean that you rarely buy items which are the least expensive. . . .

Think online "incorporation services", paralegal and document preparation services, as well as high-volume or newly-admitted-to-the-bar "discount" lawyers versus established, experienced, and more costly attorneys provided personal service.

See also:

Online incorporation services review;

The Top Ten Distinctions Between Millionaires and the Middle Classby Keith Cameron Smith (2007) (Millionaires think and plan long term; the middle class does not.); and

The Millionaire Next Doorby Thomas J. Stanley & William D. Danko (1998) (Millionaires think long term; willing to spend a lot on important, long terms, and preventative things and measures, but not much on the instant gratification of new cars, clothes, or jewelry.).

Birmingham Business Journal Announces - BAN

Just an FYI...Friday the BBJ did a great article on our own Birmingham Angel Network.

Take a look: New 'angel' group hopes to fill city investment gap

Federal Minimum Wage Increase

The federal minimum wage increases from $5.85 to $6.55 per hour, effective today, July 24, 2008. The minimum wage will increase to $7.25 next year.

Note that the California minimum wage applicable to California employers and employees is already higher than the current or future federal increases.