July 2009
A federal district court judge in Minneapolis recently refused to dismiss claims of age discrimination and retaliation brought by an employee who was terminated as part of her employer's reduction in force (RIF). Although the employer claimed that the plaintiff was selected for termination as one of two employees with the lowest productivity rating, the court determined that a jury must decide whether or not the RIF was the genuine reason for the plaintiff's termination. The court based its decision on a number of factors which can best be described as a "what-not-to-do" list for employers who wish to avoid litigation:
- After the plaintiff, who was 62 years old, suffered a heart attack the year prior to her termination, a manager allegedly commented to her that her heart attack had cost the company over $100,000.00 in medical costs.
- Shortly after the employee returned from her medical leave, another manager allegedly asked her if she planned on retiring that year.
- The employer had hired two new employees (ages 35 and 48) to work in the same jobs as the persons who were terminated just two months later; the other terminated employee was 71.
- The employer lacked any written documentation for its RIF. Consequently, while the employer claimed the plaintiff was chosen for the RIF for her poor productivity, the plaintiff argued that her productivity was unfairly measured to include the period of her medical leave following her heart attack. The plaintiff further argued that the employer's productivity measure also failed to account for considerable assignments she was given outside the limited duties upon which productivity was measured. With no documentation to counter the plaintiff, the employer must now convince a jury of the genuineness of its decision.
Given the uncertainty of today's economy, many employers face difficult decisions regarding the appropriate size of their workforce. RIFs are common but employers who have made their employment numbers very lean may need to hire or add new workers on a limited basis from time to time. The last thing an employer needs in this difficult economy is a lawsuit and legal liability. In these circumstances Ben Franklin's saying - "An ounce of prevention is worth a pound of cure" - rings true. We recommend that experienced legal counsel be involved in making and implementing RIF decisions.
Questions? Please contact WS Shareholder and Senior Attorney James Sherman in our Minneapolis, MN office at (952) 746-1700, or jasherman@wesselssherman.com.
