SELECTING AMONG EMPLOYEES IN A RIF/DOWNSIZING

Let’s consider the subject of “graceful exits”, and how “graceful” is all in the eyes of the beholder.

Keith is a senior manager, who was recently advised that he needs to reduce his staff by three full-time employees before year end. Keith has selected the two lowest performers on his team (a man and a woman), as well as Alix. While Alix was rated a year-on-year average performer, Keith says there are some issues with her performance that have not been documented. Keith comments that Alix seems unhappy and does not get along well with her colleagues. Last month Alix had complained to HR about one of her coworkers. Keith views the severance package as a “graceful exit” for Alix.
Should Keith move forward with these terminations?

Consider these individuals relative to their peers

Lowest performers – is this status apparent to the individuals being selected? Have they received an unfavorable performance review, or been the subject of formal disciplinary action? Has either been commended recently by Keith or any other manager for improved performance? These are questions of fairness and perception that will need to be assessed relative to the culture of the business.

Underlying legal considerations – do any of the selected individuals fall into a different demographic group (based on age, race, disability or any other legally-protected characteristic) than the individuals who are remaining with the team? Was either recently absent on leave, or did he/she seek a workplace accommodation due to a medical issue? If so, the risk that a selected individual will file a legal claim of discrimination increases if Keith’s business reasons are not demonstrable or were not clearly articulated.
Alix – How does Alix’s performance compare to her peers who are not being selected? While not documented, has Keith or anyone else counseled Alix on her interactions with her colleagues? If so, what was she told and when? As with the other selections, these factors impact the risk of a legal claim.

Alix’s prior complaint – the nature of Alix’s complaint to HR, and Keith’s involvement in that matter, are important considerations. Were Alix’s concerns substantiated? Was the issue a personality conflict, or did Alix complain of harassment or discrimination based on a protected characteristic? If the latter, then even if HR’s review found the coworker had done nothing wrong, Alix may view her termination a month later as retaliation. She may not appreciate it as a “graceful exit” and, while Keith may have selected Alix for legitimate business reasons, that can be challenging to prove if performance documentation is lacking.

Appropriateness – aside from the litigation risk, is Alix’s selection appropriate –will others think she was selected because she complained to HR? Will this discourage them from raising concerns, or cause them to lose confidence in the company?
Reducing staff is never a simple, risk-free proposition, but careful assessment in advance of taking any action can help mitigate the legal risk.

* In my years of legal practice, there are certain recurring issues that cross a range of industries and circumstances. This column presents a hypothetical factual situation as a vehicle to substantively review these recurring legal and employee relations issues.