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Legal Speak

Employee Rights in Layoffs

Published October 15, 2013 8:59 AM by Tony DeWitt
Carrie was aware the firm was having financial problems, and she knew that other people had been laid off, but was pretty sure of her own job security because she felt like she was "mission essential" to the operations of her employer.

When the intercom buzzed and her boss said "Carrie, please step into my office," she assumed there was a new problem that had arisen, or a job that needed to be done, and she brought along a tablet to take notes. She had no idea she was the problem. When she arrived she noticed the woman with gray helmet-hair and horned-rimmed glasses in a gray wool suit purchased from a department store sometime in the 1960s. She was from the HR department, and she was sitting next to her boss. "I'm just here as a witness," the woman said. Carrie started to put two and two together, and almost didn't hear what came next:

"Carrie, we're letting you go."

People who have near death experiences describe a situation where they're out of the body, floating over the scene of their death. That's what Carrie felt. She tried to articulate the questions: Why? What have I done? When does this take effect? But instead her heart raced and her mouth opened and closed, and she started to cry (a show of weakness she later regretted). She couldn't even ask an intelligent question she was so shocked.

Anticipating her questions her boss explained she hadn't done anything wrong. Her position was being eliminated. The company was downsizing. She'd be considered for rehire in the future, but she should go look for a job immediately. She would be paid through the end of the day, but her termination was effective immediately.

A security guard stood outside the door (how had she missed him on the way in) and nodded curtly as she left her bosses office. He gave her a box and she packed the contents of her desk under his watchful eye. She wasn't allowed to take any paperwork. He handled everything she put into her box to make sure it was hers, and not the company's property. Carrie later said she felt like she was being treated like a sneak thief.

For the next two days Carrie sat at home and did mindless tasks. She washed, cooked, cleaned house, and did all the things she didn't have time to do when she was working. But mostly, she felt sorry for herself. On the third day she got angry and called a lawyer.

"You can be fired for any reason, or for no reason, but just not for an unlawful reason," the lawyer told her. "If you were filed in a legitimate downsizing, and it isn't related to age, sex, pregnancy, race or religion, then in most cases, you can't sue your old employer."

The lawyer was half-right. You can certainly sue, you just can't win. Any lawyer will tell you that employment cases are the most difficult type of case to win, primarily because the laws in most states are so antagonistic to employees. As one plaintiff's lawyer explains "If you don't have your boss on video tape asking for sexual favors, berating you with racial slurs, or sending out memos with crude anatomic drawings on them, then in most cases you'll lose."

About 70% of employment cases are dismissed before discovery (meaning the judge determines that there is no potential for recovery under the law). Of the ones that go into discovery, about 85% of those are dismissed on summary judgment (meaning the judge determines there is no issue for the jury to hear). Of the cases that are appealed, only about 5% nationally are ever reversed. The case law in federal court has become so hateful to employee rights that most employment lawyers will avoid federal court at all costs.

In my next blog posting, I'll highlight some of the more egregious discrimination cases from across the country and show how hostile federal courts are to employment litigation.

posted by Tony DeWitt

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About this Blog


    A.L. "Tony" DeWitt, RRT, CRT, JD, FAARC
    Occupation: Attorney
    Setting: Jefferson City, Mo.
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