In the COVID-19 recession, many employers made reductions in force en masse, thus avoiding selection decisions that might be challenged as discriminatory.  If the same employers recall or rehire employees en masse, they will continue to avoid such decisions.  But what if the employer’s need to recall or rehire is partial or gradual, such that some employees are brought back before others?  Such choices can give rise discrimination claims.  To protect itself, an employer will need to apply and document a non-discriminatory method of choosing among employees.

Continue Reading Selecting Employees for Recall or Rehire

By now most everyone has heard about the travails of WeWork arising from the swift downfall of founder Adam Neumann. If you have not heard, you are missing some fascinating stuff.  A Wall Street Journal piece was first to chronicle Neumann’s manic behavior (such as pondering how to become immortal and transporting large amounts of marijuana on a private jet trip, much to the chagrin of the jet’s owner!). In the wake of these disclosures, private equity investment firms that had committed tens of millions to WeWork became skittish, a planned IPO was pulled, and a faction of WeWork board members called for Neumann’s removal as a CEO. Indeed, within roughly a week of the WSJ article, he was forced to vacate his leadership role. Goldman Sachs, Morgan Stanley, and other investment houses now have written down the value of their investments by tens of millions of dollars.
Continue Reading Executive Rules of Etiquette for RIFs

Some employers view a reduction in force as an apparently easy and clean way to get rid of employees they do not want – like poor performers, who have not been properly performance-managed.  There may even be less appropriate considerations in mind – an older employee viewed as slowing down, an employee with health problems who has missed a lot of work, a pregnant employee who will need leave after her child’s birth. These employers assume that if the employee accepts a severance package and signs a release, the matter is closed.  The case of Hawks v. Ballantine Communications, Inc., however, highlights the peril of such thinking.
Continue Reading RIFs Are Not the Easy Solution for Problem Employees