When “Lay-Off” is a Wrongful Retaliatory Termination
One creative way that an employer might want to terminate and employee and avoid liability for wrongful termination is by labeling firing as a “lay-off”. Consider a situation where an employee with a good performance records approaches his manager one day and complains about discrimination or harassment, safety issue, or informs his employer of a disability or a need to file a workers compensation injury claim. A few days or a few weeks later, the same employee is being “laid off” due to lack of work or restructuring. How can one tell whether it’s a genuine lay off or just a cover-up for discriminatory / retaliatory termination which is against the law? Here are some of the questions that you can ask yourself to determine whether there might be a legitimate wrongful termination claim:
- How many other people were laid off – were you the only one laid off in your company or department? If so, unless you were the most junior or the worst performing employee, this fact might suggest that you weren’t really laid off due to downsizing.
- Does the company have a written policy on how its employees are to be selected to be laid off when lay offs take place? If so, does it look like the company complied with its own policy? If not, the employer’s own deviation would suggest that the lay off might not be free of illegal pretext.
- Have you been replaced with someone else? Did the company start looking for another person to replace you shortly after you were “laid off”? It might be worth finding out from your former co-workers or looking at the classified ads to see if the company is looking to hire someone in your place.
- Have you been warned about the possibility of a lay off? If not, why didn’t the employer inform you earlier?
- Were you laid off soon after engaging in a protected activity (complaining about discrimination, not being paid overtime or being misclassified as a contractor, complaining about sexual harassment, etc…)? If so, this would further suggest the likelihood of retaliatory termination.
Do this brief and relatively simple investigation can provide an insight into whether you were truly laid off or wrongfully terminated.