Terminating the Employment Relationship

require an employer to negotiate the impact/effects of a layoff decision. Consequently, an agency has a duty to meet and confer regarding effects/impact of a layoff. An example of an effect/impact of a layoff could be the workload for remaining employees.

C. P OTENTIAL L EGAL R AMIFICATIONS : D ISCRIMINATION /W RONGFUL T ERMINATION /R ETALIATION As with all other employment decisions they make, employers must ensure that their decision to impose layoffs on particular job classifications can be supported by sound business reasons. The concerns of discrimination, wrongful termination and/or retaliation are more likely to occur in situations where the employer is eliminating a job classification (resulting in a layoff) that has only one employee, or temporarily laying off such an employee. That employee is likely to question why he/she was chosen over all others and file a discrimination, wrongful termination and/or retaliation claim which must be defended. It is also important to consider the potential legal ramifications of a layoff in the same manner as an employer does when making the decision to terminate. For instance, an employee who receives a layoff notice within a week of filing a sexual harassment complaint, a safety complaint with CalOSHA, or a workers’ compensation claim will likely believe he or she is being laid off because of his/her protected activity. Potential legal ramifications are discussed above in the Termination section, but apply with equal force to layoffs. D. L AYOFFS I N L IEU OF T ERMINATION : D UE P ROCESS C ONCERNS Due process issues can arise with layoffs. Due process issues often arise where the laid off employee can show that the layoff was merely an attempt to circumvent the employee’s due process rights that would attach if they were to be terminated. This may occur in those situations where performance evaluations are not properly completed and allow a marginal employee to avoid discipline for years with undeserved positive evaluations. The employer may not believe the discipline will be upheld given the evaluations and seek to accomplish a termination via layoff. If the allegations are proven, a deprivation of due process can lead to reinstatement with back pay and benefits, other compensatory damages and recovery of the employee’s attorney’s fees. Given these risks, layoffs are not an appropriate substitute for disciplinary procedures. Rather the employer should terminate the employee for cause pursuant to its disciplinary procedure and rely upon sufficient evidence to support disciplinary action. In addition, under the federal court decision of Levine v. City of Alameda , it is arguable that agencies are required to provide pre and post-termination due process rights for all property interest employees who are laid off. 320 At minimum, where an employee claims that the layoff is pretextual for a for cause termination ( e.g. layoff was in lieu of a discipline based termination), the employee is entitled to have the issue resolved through the Skelly pre-action and post- termination administrative appeal process. Moreover, there is a greater risk of challenge if the agency has a performance based (as opposed to a seniority based) layoff procedure and does not provide pre and post-termination due process procedures.

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 93