It’s a common event: You learn that you are being laid off, maybe as part of a company-wide “restructuring,” a corporate "downsizing," or a job elimination from a “reduction-in-force” (“RIF”). Your employer claims that it was a business decision, so what can you do?
The answer depends on how the employer handled the layoff and on the circumstances leading up to your departure. A lawyer might be interested in your case if your employer had an illegal motive for letting you go or didn't follow legal requirements in conducting the layoff.
Layoff or Termination?
Employers (and employment lawyers) use the term “layoff” generally for any job termination based on a business reason, such as lack of work. A reduction-in-force (RIF) refers to the elimination of one or more positions to save money. Employers also use terms like “downsizing” and “restructuring” to describe job eliminations. The general idea is that a layoff is impersonal: Any employee in the position targeted for elimination would have lost the job. The reasons for a layoff have to do with the company's financial picture and future plans, not with the particular employee who loses a job.
Employers use the term “termination,” by contrast, for the decision to fire an employee for any reason other than a business-based job elimination. However, these are not terms of art in the law and may be used interchangeably. Terminations may be “at-will” (for no stated reason) or “for cause” (for a stated reason). (For a discussion about how a lawyer assesses a termination for cause, see Will a Lawyer Take Your Wrongful Termination Case if You Were Fired for Cause?)
Regardless of how you lost your job, the main questions an employment lawyer will ask in assessing your potential case are:
- What was the real reason for the decision?
- Did the real reason violate a law?
- Did the employer handle the process legally?
Did Your Employer Meet Its Obligations?
There are certain requirements an employer must meet whenever it lays off employees. When you’re laid off or RIF’d, your employer must give you:
- a final paycheck for all wages earned, within the time set by state law
- payment for untaken, vested vacation time (if state law requires it)
- severance pay (if the employer has a severance policy)
- notice of your right to continue on the employer’s group medical coverage (although you have to pay the premium), and
- 60-days’ notice of your lay-off if it’s part of a mass layoff or plant closure.
For more information about your rights in a layoff, see Layoffs and Plant Closings: Know Your Rights.
If your employer failed to meet these obligations, you may have employment law claims that a lawyer could help you with.
How a Lawyer Assesses the Reasons for Layoff or RIF
The label your employer puts on its decision to let you go does not really matter. And, in many states, an employer can fire you for any legal reason or no reason.But there are limits, even when you are laid off or RIF’d, and a lawyer will assess whether you have any claims by asking these questions.
Did You Have a Contract?
You may have had a contract, or your employer may have had a policy, that restricted the allowed reasons or procedures for letting employees go. An employment lawyer will assess whether or not your layoff complied with a contract or employer policy. If not, you may have a breach of contract case.
Were Employees Treated Differently?
Your employer may claim that you were let go as part of a business-related layoff or RIF, but an employment lawyer will want to know whether the facts support that claim. Sometimes the numbers speak volumes: Are you a member of a legally protected group, such as women or people over the age of 40? Were more people in the same protected category laid off than would reasonably be expected given their proportion in the employer’s overall workforce? If so, you may have evidence that your employer selected you for layoff based on a discriminatory reason.
(For more information about wrongful termination claims, see Wrongful Termination: Was Your Firing Illegal?)
If you reported discrimination or other illegal activity shortly before your layoff, a lawyer will also assess whether your employer laid you off in retaliation for that activity.
What Are Your Damages?
A lawyer evaluating your case will want to know what financial losses you have suffered. In a wrongful layoff case, the types of damages that you may recover include lost pay, lost benefits, emotional distress damages in certain cases, and punitive damages when available. You might also be entitled to collect attorney fees from the employer if you win.
For a more detailed discussion of damages, see Damages in a Wrongful Termination Case.
Are There Witnesses and Other Evidence?
The lawyer will ask whether there are witnesses who might have information suggesting that the employer did not handle the layoff properly or selected you for an illegal reason. Help the lawyer evaluate your case by bringing a list of witness names and contact information to your meeting.
It’s a good idea to ask for a copy of your personnel file as soon as possible and bring it when you meet with a lawyer, too. Be sure to bring copies of all relevant documents, including layoff announcements, contracts, and policies, for the lawyer to review.
The lawyer will also want to know whether you have any documents, such as lay-off lists, that might show other (possibly illegal) motives for your lay-off. If you are the only person whose job was eliminated in a “RIF” and also the only person of color in your department, for example, the “RIF” might look pretty questionable.
Will You Be a Good Witness?
most important witness in any case you bring is you. From the moment
you first meet, the lawyer will be evaluating you as a potential
witness. If the lawyer sees that you are clear, concise, organized,
presentable (that is, with a proper, business-like demeanor), and
honest, he or she will be confident in you as a credible witness who
should impress a jury.