Layoff or Wrongful Termination? Don't Let Covid-19 Be Used as an Excuse to Discriminate

With the covid-19 pandemic sweeping the world, countries and states, including New York, are bracing for a global recession. The word recession cannot be separated from fears of layoffs. No doubt, with the inevitable downturn in the economy, companies large and small will be conducting reductions in force via mass layoffs. Sometimes, layoffs are completely legitimate and lawful. Other times, however, layoffs are used as an excuse to discriminate against a protected class of employees. Our Long Island wrongful terminations lawyers are available to discuss your circumstances and to help determine whether a layoff is lawful or unlawful workplace discrimination.

To begin with, layoffs are generally lawful. Many states such as New York State, are at-will employment states. This means employers are allowed to fire employees for any reason or no reason. Financial constraints, such as those posed by a recession, is a facially legitimate reason to conduct layoffs and to terminate employees. But, even under financial hardship conditions, some layoffs may still be illegal or unlawful.

Employees who have contracts may have protections against layoffs. Contracts can be individual or collective. Individual contracts are contracts between one employee and the employer. Individual contracts are typically offered to executives, certain salespersons, and professionals, such as doctors. Employment contracts may have clauses which set forth the conditions by which the employer can terminate the employee. If you believe you have an individual employment contract which prohibits your layoff, our Long Island employment lawyers can review the contract to determine whether your layoff violated the employment contract.

Collective contracts usually apply to labor unions and are called collective bargaining agreements, or CBA's. Sometimes CBA's have a no layoff provision which prohibits the employer from laying off employees in the particular bargaining unit. These provisions are frequently seen in public employment contracts, such as a CBA for a police department or for civil service workers. Unions can help determine whether your CBA prohibits layoffs, but our Long Island labor lawyers can also help.

Mass layoffs are frequently used as a disguise to cover up unlawful discrimination. If an employer uses layoffs to target a protected class of workers, such as females or older workers, the employer may be engaging in unlawful discrimination. In other words, even though the employer may be legitimately facing economic hardship and may legitimately be using layoffs to help, it may apply its layoff decisions in an unlawful manner. Covid-19 (coronavirus) presents an opportunity for an employer to eliminate an unwanted segment of the workforce. For instance, businesses with traditionally male dominated workforces, such as construction or financial services, may use coronavirus as an excuse to eliminate women. Companies may also use covid-19 as an excuse to eliminate older workers with the hope of bringing in younger, "fresher" employees when the crisis passes

Layoffs used for discriminatory purposes are unlawful. How do you know if a layoff was unlawful discrimination? Here is some evidence of discrimination which can be used to determine whether a layoff was unlawful or lawful:

• Comments which show discriminatory animus: supervisors, decision makers, or co-workers who make comments in the workplace which make fun of your protected group or which outright degrade your protected group, can suggest that a discriminatory animus exists in your workplace.
• Similar treatment: were women the primary target of the layoff? were all or most of the workers terminated over the age of 50 or 60? This evidence suggests the layoff was discriminatory and not lawful.
• Workforce replaced: If many workers were terminated, but the company hired replacements who were younger or who were all male, the evidence suggests the layoff was an excuse to conduct a discriminatory layoff.
• Business is good: Is the company you worked for still thriving during the coronavirus pandemic? This can show the layoff is not legitimate at-all, but rather is being used purely as an excuse to eliminate an unwanted segment of the workforce.

Evidence of discrimination is not always apparent. Speaking to one of our Long Island discrimination lawyers can help determine whether your layoff was legal or a wrongful termination.

Whether a layoff is lawful or not, employers frequently ask terminated employees to sign a separation or severance agreement. Severance agreements offer the employee an amount of money in exchange for the employee signing a general release. The general release waives all legal claims an employee may have against the employer. The release includes claims of discrimination and retaliation and any other workplace claim the employee may have had against the employer. Severance agreements can have many other conditions, including confidentiality, restrictive covenants, non-disparagement, and representations the employee must make.

Severance agreements should be closely examined and employees should not agree to sign them unless they understand the conditions they set forth. Our Long Island employment attorneys can review severance agreements and separation agreements. We can help renegotiate offensive terms or monetary offers and we can explain the legalese, terms, and conditions set forth in the agreement. Our severance agreement consultations can also explore whether the layoff was unlawful and whether grounds exist to sue the employer.

Covid-19 will create serious economic struggles for many businesses. Some businesses will react with legitimate mass layoffs. Other businesses will use legitimate layoffs in discriminatory ways to eliminate unwanted parts of their workforce. Still other businesses will use coronavirus as an excuse to conduct illegitimate and unlawful reductions in force. Speaking to an experienced Long Island employment lawyer can help determine which category your layoff may fall into.