Concerns About Being Laid Off
Laid off? These are the legal rights that can protect you
Dawn Papandrea, Monster contributor
Understand what your legal rights are when you've been laid off.
In most cases when people are laid off, they are so shocked or emotional about the experience that they aren’t sure what to do, what their rights are, or if they might even have a legal basis to sue. As a result, they end up walking away, no questions asked—sometimes with severance pay, sometimes with nothing at all.
If you’ve been laid off, step one is to breathe. You have every right to feel stunned.
“Most employees start jobs and no one ever thinks about what’s going to happen in the event of termination,” says Christopher Davis, managing partner of Law Office of Christopher Q. Davis, based in New York.
So would you know what to do if your boss called you in to have the layoff talk tomorrow? Here’s what employment law experts say you should know.
What laws protect you during a layoff?
The default in virtually all employment situations is “at will” employment, says Marc Siegel, founder and managing partner of Chicago-based Siegel & Dolan, mediator, and arbitrator. “That means an employer can terminate you for any reason, or no reason at all, as long as it’s not discriminatory.”
If you're in a protected class your age, sex, national origin, religion, or race, or if you have a disability, and you can prove that you were laid off because of it, then you might have a case.
Without getting too deep into legal jargon, here’s a quick look at some of the federal discrimination laws that cover workers.
If you’re over 40: The Age Discrimination in Employment Act (ADEA) of 1967 protects workers 40 and older. In addition, if you’re in that age category and you’re part of a group layoff, you’re also protected by the Older Workers Benefit Protection Act. This gives you 21 days to consider any severance offer, and another seven days to revoke your agreement.
If you’re part of a minority group: Title VII of the Civil Rights Act of 1964 prohibits companies from making employment decisions race/color, religion, sex, pregnancy or national origin.
If you have a disability: The Americans with Disability Act (ADA) of 1990 prohibits employment discrimination against those with disabilities.Just suspecting your affiliation with one of these groups prompted your layoff isn’t enough to bring a claim, says Davis. “You have to prove ‘disparate impact discrimination,’ which involves some quick math. Has the company put a larger number of members of a protected category into the group of people being terminated?” says Davis.
Other potentially illegal reasons for a layoff include:
If the employer violates public policy: For example, if an employee files a workman's compensation claim or reports an illegal or unethical behavior, and then a couple of months later is terminated, that worker might be able to prove that the layoff was done in retaliation, says Siegel.
Read up on federal whistleblower laws, as well as those in your state, if you find yourself in this situation, says Davis.
If you have to take care of a family member who is ill: The Family Medical Leave Act (FMLA) entitles eligible employees to take up to 12 work weeks unpaid (26 if the care is for a servicemember), job-protected leave for specified family and medical reasons with continuation of group health insurance coverage.
If your employer is large: The Worker Adjustment and Retraining Notification (WARN) Act sets rules for notifying workers about large layoffs and plant closures.
You must receive a written notice 60 days before the date of a mass layoff. If not, you may be able to seek damages for back pay and benefits for up to 60 days.
In some states New York, employers have to give 90 days notice.
If you think you were laid off because of any of the above reasons, consult with a local attorney to help you decide if legal action is warranted. You may also contact the Equal Opportunity Employment Commission (EEOC) to file a complaint.
What can you expect in severance?
Questions of legality aside, you might be wondering if you’re entitled to severance, and if it’s worth negotiating for a better package. First off, know that an employer is not obligated to give severance at all. “Some companies offer severance as a matter of company policy,” says Davis, “but it is discretionary.”
In larger companies, severance plans may be a set, standard formula, says Siegel. “Generally, you’ll see offers of one to four weeks of pay per year of service, and it’s capped at a certain number of weeks,” he adds.
The other aspect of the severance besides what you’ll be paid is what rights you’re giving up.
“If you’re getting a severance, it could be that the company is trying to discourage you from consulting with a lawyer,” says Davis. Once you sign the agreement, you give up your right to sue.
“That’s valuable to a company because they don’t want to have to pay lawyers or pay settlements or judgments.”
Also, be very careful about covenants that follow you, says Siegel. “If there are any post-employment restrictions about soliciting customers or working for competitors, sometimes the amounts they’re paying you might not be worth it,” he says.
Similar to a salary negotiation, you don’t necessarily have to take the first offer when you’re handed a severance. “There could be room to negotiate your severance. Every agreement isn’t just a goodwill gesture,” says Davis. “Companies do pay out more if there are legitimate legal claims, so always run it by a lawyer.”
In fact, coming away with a better severance is often a person’s best recourse rather than suing, since doing the latter can take years and require a lot of legal fees.
Under what circumstances should you sue?
If you think you have a good case, you could go ahead and sue your employer, but bear in mind that it’s an arduous process, says Siegel. Ask yourself these questions:
What type of claim do I have, and is it worth fighting?
Of all the potential claims, Siegel finds that Family Medical Leave cases tend to be easiest to win, assuming you have good evidence. “Everyone knows someone who’s been sick, so juries are more sympathetic,” he says. In addition, the standard of proof in such cases is more lenient than in other cases.
Take age discrimination cases, for instance. Those require the higher “but for” standard of proof, says Siegel. In other words, you have to prove that “but for” your age, you would not have been terminated. Also, in age cases, even if you do win, don’t expect large payouts. The ADEA doesn’t allow for emotional distress damages or punitive damages, says Siegel.
With racial and sexual discrimination cases, the burden of proof is slightly less stringent—you just have to show race/sex was one factor in the discharge, says Siegel. The challenge is trying to get a unanimous jury to agree. If you can, though, you may win compensatory and punitive damages (which are allowed), says Siegel, especially in states California where damages are uncapped.
How big of a layoff is it?
“The more people that are being let go, the harder it’s going to be hard to show you were being targeted unless you have some pretty good evidence,” says Siegel.
Unfortunately, he adds, sometimes companies use a mass layoff to let a ‘red flag’ person go—whether it’s a 65-year-old, a member of a minority group who is ly to claim discrimination, or a person who filed a sexual harassment complaint.
“When they are let go with everyone else, it’s much harder to prove discrimination,” says Siegel.
Where do you live?
Depending on your state’s laws, you might have an easier time of winning a case. Siegel says generally speaking, states such as Illinois, New York, and California have stronger employee protections. Read up on your state’s labor laws via the Department of Labor’s website.
Ultimately, consulting with an attorney can help you determine whether your layoff appears to be legal or illegal, but only you can determine whether the cost of going after your former employer is worth the time and effort.
Now that you have a better understanding of your rights, should the day come when you’re laid off, you won’t be so caught off guard and will be in a better position to negotiate. If you think you might have a legal claim, be sure to work with an employment lawyer to help you walk away with a better severance or, if warranted, pursue a lawsuit.
Take this important next step
Being laid off can send you into a tailspin, no matter how many years you’ve been in the workforce. You feel stressed, angry, and, let’s face it, kinda hopeless. That’s where we come in. Could you use some help jump-starting a job search? Join Monster today.
As a member, you can upload up to five versions of your resume—each tailored to the types of jobs that interest you. Recruiters search Monster every day looking to fill top jobs with qualified candidates, just you. Additionally, you can get job alerts sent to you when positions become available.
Those are just two quick and easy ways Monster can take some of the burden off your shoulders. It’s what we’re here for!This article is not intended as a substitute for professional legal advice. Always seek the advice of an attorney regarding any legal questions you may have.
How To Lay Off Employees With Dignity? 8 Step Laying Off Process
Un dismissal and other forms of involuntary terminations, layoffs are conducted for reasons other than employee performance or conduct. Layoffs usually happen due to changes in the organization, economic recessions, and other related market volatile conditions.
Sometimes, organizations may wish to restructure in which case they need to choose some of the employees for layoff. If this process lacks the necessary etiquettes either on the part of the employee or the employer, the consequences are bitter as well as painful.
Your goal as an organization, therefore, is to make the separation as amicable as possible, allowing you to lay off employees with their dignity intact even as they walk out the door.
It’s quite simple – a mishandled termination of employment creates anger and resentment. That leads to lawyers, and as a manager, you want to avoid those waters wherever possible. That means you must keep the discussion away from the employee’s failings- this isn’t a coaching session, it’s a termination.
Here are some steps that will help you achieve what you want while letting the employee move on with his or her life.
Step 1: Determine the extent of the problem and figure out the departments that will be affected
As a manager, you need to be able to identify your reasons for a layoff and be able to establish how the process will go down.
During a lay off you should evaluate how much the process will cost the organization and what alternatives can be taken to cut costs and save employees.
If there aren’t any, try to determine the departments that might be affected by the layoff and also prepare for it.
Step 2: Freeze hiring
Hiring and laying off do not go hand in hand as one of the primary reasons for laying off employees is to cut costs. Therefore, when you prepare for a layoff, you should stop making new hires as this will only bring additional expenses that they organization may not be able to handle at the moment.
However, in the case where you are laying off non-performing employees, hiring can be considered to fill in front line positions that are left vacant. If this happens, you can consider the laid off employees-at least those that you think can perform well in the said positions.
Step 3: Prepare tentative lists of employees to be laid off.
After carefully analysing the situation and determining the departments that might be affected by the layoff, the next step is actually to figure out which employees will be believing. This process is known as the performance evaluation where the manager evaluates the profane levels of all ear marked employees.
The evaluation will help you establish the best and least performing employees thus making it easier to choose those that are more valuable to the business at the moment and those to lay off. Sometimes, you can also begin by laying off employees with the least service in the organization-those hired recently.
Step 4: Notify all employees of planned layoffs in advance.
Finding out about a possible lay off via rumours or outside information isn’t always the best thing that can happen to your employees. It tends to kill their morale, trust and the future of the organization as well. It is your responsibility as the manager to tell your employees in advance about a lay off before anyone else does.
The best way to deliver news about a lay off is a one on one meeting with your staff. Email notifications, memos, and other indirect communications are not the best way to communicate such a drastic measure.
A lay off is a sensitive issue at least it is for those affected, it should, therefore, be delivered with respect, compassion, and concern. You never know, perhaps you discussing the layoff and the reason behind it can bring up discussions and ideas that might help salvage the current situation.
Better cost saving approaches might arise during the discussion that may make you realize that after all, you don’t need to lay off employees.
Step 5: Prepare a final list of employees to be laid off
If a lay off is inevitable even after discussing the situation with staff, then it’s time you started preparing a final lay off list. You could choose to retain top performers and those in senior but critical management positions.
Preparing this list can be challenging that is why organizations are often advised to have a set termination process and policies that can be used to conduct such operations as layoffs efficiently. As you do this, be sure not to evaluate employees emotionally or be discriminatory in choosing who is going and who is staying.
Step 6: Notify affected employees
The fact that your employees already know that there is a possibility of a lay off makes them psychologically prepared for any outcome. This makes it easy for you to break the sad news to the affected employees.
You can choose to do this in private or in a group meeting with everyone involved in the termination process.
Step 7; do the deed, terminate
One thing that you shouldn’t do is to terminate employees in public and more so in a casual manner. You need to call all that are affected one by one and finalize the termination procedure behind closed doors.
Let the employees hand in any organizational property i.e. keys, files, badge, and uniforms. Take this opportunity to explain and give them their severance pay and also offer any post termination processes counselling etc. to help them cope with the situation.Lay off employees is a universally thankless task.
Step 8: Rally the remaining employees
The closure is necessary for the retained employees after a lay off. You need to call them into a meeting and explain to them that you had to do what you had to do. This gives the employees a chance to express their concerns publicly and hear directly from you what occurred. This not only minimizes concerns relating to employees’ job security but also diminishes the rumour mill.
Periods of layoff are never easy. How the organization manages the messages about the process will determine how employees and the public response to the organization in the future. If you lay off employees correctly, you and everyone concerned can each move forward with minimal disruption.
Difference Between Laid-off and Fired (with Similarities and Comparison Chart)
When an employee leaves the organisation, the situation is known as separation. The cause of separation can be voluntary or involuntary.
In the former, the employee decides to terminate his/her relationship with the employer, but when the employer initiates the separation, it is an involuntary separation.
Being laid-off and fired are two types of involuntary separation, wherein laid off is due to the inability of the employer to give employment to the employee.
On the other hand, the firing of an employee occurs when the employee is terminated due to his/her fault.
When an employee is laid-off, it is only for a short period, whereas when an employee is fired, he/she can never join the organization again. The article presented to you, explains the difference between laid-off and fired, in detail.
Content: Laid-off Vs Fired
- Comparison Chart
- Key Differences
|Meaning||Lay-off implies the provisional suspension of an employee or a group of employees from work by the employer, due to the company's inability to provide employment.||In business terms, fire means to reduce an employee from work, against his/her will, due to under-performance or serious infraction.|
|Caused by||Downsizing, restructuring or economic downturn.||Employee's misconduct, poor performance or violation of policies.|
|New employment||Easy to find||Difficult to find|
|Degree of severity||Low||High|
Definition of Lay-off
The term layoff is used to refer a situation when an employee or a group of employees are temporarily separated, at the instance of the employer, for reasons such as slowdown or cyclical slump in revenue. It is an involuntary reduction in the workforce, due to failure, refusal or employer’s inability to provide employment to an employee, whose name exist on rolls.
The situation may be experienced because of machinery breakdown, economic recession, insufficiency of raw materials, accumulation of stock and so forth.
Lay-off occurs for a specified period, after the expiry of which the employee is recalled to join the job again. However, the term of lay-off can be extended to any length of time, and so the employer cannot anticipate, how long the situation may continue. During this time, the employee is paid compensation, which is equivalent to 50% of the basic salary.
Definition of Fire
To fire means to put an end to the employment, initiated by the employer against the will of the employee. Also known as dismissal or discharge, it is a drastic step, taken by the employer, after considering all the parameters, such as the performance, competence, skills, etc.
The decision to fire an employee must be supported by just and fair reasons which could be excessive absenteeism, theft of company’s property, serious misconduct, disobedience, harassing coworkers, poor performance, reporting to an office in an intoxicated state, incompetence, etc. Once the employee is fired, due to his own fault, it is tough to find a new job, especially when the cause for firing is serious infringement.
The points given below are noteworthy, so far as the difference between laid off and fired is concerned:
- The provisional suspension of an employee or a group of employees from work by the employer, due to the company’s inability to provide employment, is called lay-off. The reduction of an employee from work by the employer, against employee’s will, due to under-performance or serious infraction is known as fire.
- Lay-off is a temporary situation, i.e. the employee might be recalled by the employer for duty when the term of lay-off is over. On the contrary, when an employee is fired, there is no chance of getting the employment back, i.e. it is permanent.
- The reasons for lay-off include downsizing, restructuring or economic downturn. As against this, a person may be fired because of his own misconduct, incompetence or insubordination.
- When an employee is laid-off by the company, he/she is eligible to receive compensation. Conversely, when the employee is fired, he/she is not entitled to receive compensation from the employer.
- After termination, the position of a laid-off employee remains vacant, whereas the fired employee is immediately replaced with a new one.
- When the employee is laid-off, he/she can easily find a new job, as the reason for laid-off is beyond anybody’s control. However, when an employee is fired, it is hard to find a new job, because he was terminated from the job because of his performance or behaviour, which adversely affects his/her resume.
- The situation of being laid-off is less severe, as compared to being fired.
Both laid-off and fired, refers to employee’s cessation from work, i.e. he/she is no longer regarded employed by the company. The initiative of termination is taken by the employer. The employee is not going to receive wages or other benefits from the company anymore.
While laid-off entitles an employee for compensation and other unemployment benefits, this is not in the case of being fired, because, it occurs due to his own fault.
Both laid-off and fired are the worst thing that can happen to an employee, who is sole bread-earner in his/her family, as it is very difficult to find a new job immediately.
The most important differences between these two involuntary terminations are semantics.
What is the Difference Between Being Fired and Laid off?
- Written By: Michael Pollick
- Edited By: Bronwyn Harris
- Last Modified Date: 02 June 2019
- Copyright Protected: 2003-2019 Conjecture Corporation
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In one sense, the only difference between being fired from a job or laid off is semantics.
Both descriptions mean a worker is no longer considered employed by the company, and he or she is no longer going to receive regular employee wages or benefits.
Some employers may see laid off as a nicer alternative to fired, but under certain employment laws, the terms are considered to be two separate conditions of termination.Generally speaking, an employee can be fired or involuntary terminated for violating company policies or failing to perform up to established standards.
In certain US states that have an “at will employment” policy, an employer can fire an employee for little or no cause during a stated probationary period. An employee can also be fired for harassing co-workers, excessive absenteeism, or reporting to work in an intoxicated state.
An employee terminated because of his or her personal actions or performance can be considered “fired,” with little to no expectation of reinstatement at a later date.
An employee can be laid off for any number of reasons outside his or her control. The company may be experiencing an economic downturn or a cyclical slump in revenue.
An entire department may be let go if a product line is discontinued, or certain employees may be released until their skills are more in demand. The implication of the term is that the company may rehire the employee in the future if conditions change.
The company, however, may see the termination as permanent and should counsel the employee to seek other employment opportunities.
There is also a legal difference between “fired” and “laid off” where unemployment benefits are concerned.
An employee who is fired for personal misconduct or ethical violations often does not qualify for unemployment benefits following termination, but an employee fired for poor job performance or absenteeism may still qualify.The same holds true for an employee who has been laid off, since the conditions surrounding his or her unemployment were not necessarily a result of personal misconduct.
The real distinction when it comes to unemployment status is between voluntary and involuntary termination. An employee can decide to voluntarily quit a position for any number of personal reasons, or even as a preemptive strike against an imminent firing or layoff.
Some employers may encourage unwanted employees to “voluntarily” quit rather than face the extra paperwork involved in an involuntary termination or firing.
Extreme measures to force an employee to quit, known as constructive termination, are considered illegal, but an employer can make the work environment so uncomfortable that an employee chooses to voluntarily quit.
Being laid off or fired or pink slipped or downsized still adds up to being unemployed, but it is often easier to use that first, nicer word on a resume or job application rather than the harsher “fired,” even though a former employer might see the circumstances a little differently. Under some circumstances, getting fired by an employer may be preferable financially to voluntary termination or layoff, but many potential employers would rather see evidence of a lay-off rather than a firing for personal misconduct or company policy violations.
|anon321142 Post 9||“I saw an email from the boss that he was getting rid of me because he found someone willing to work for less pay.”Isn't there a law that protects people from this?|
|anon314057 Post 8||I've been laid off because of lack of work coming in, so can they advertise for staff three weeks after laying me off?|
|anon310295 Post 7||I just got the boot four days before Christmas also. I was told the company needed to cut back and there was no work for me. Interestingly enough, I've been so busy I had to delegate responsibilities to other employees this week. Regardless, the company just hired a new salesman and I saw an email from the boss that he was getting rid of me because he found someone willing to work for less pay.After nine years with the company, it's a shame it ended this way. It is just deplorable the way employers treat their workers these days.|
|anon185818 Post 6||Involuntary employment status. I left the job due to a work related disability and the company has given me this type of employment status as well as a very small percentage of my pension. The company stated they requested medical evaluation forms back in 2000, and when they did not receive the reports they put me on this work status, which is in my estimation, completely wrong and unjust. They have been investigating my pension throughout their archives and have been taken weeks to do so, still with no end result.The handbook I have states I left disabled on the job and never worked since the 90's. I am almost 65 now and they say i will get a little piece of vested pension monies, but the handbook says no, you will get a full blown pension until age 65, contrary to them saying i only get seven to nine years worth. What do you think of this?|
|anon146901 Post 5||did you sign any forms when you exited?|
|anon111514 Post 4||My boss told me today is the last day! Does that mean I got fired or laid off?|
|anon65517 Post 3||I was unexpectedly told one morning that, 'I am going to have to let you go. This just is not your gig'! Then she said she would pay me through the week so I could leave immediately and start looking for a job. This was three days before Christmas!If that weren't enough I filed unemployment that day, started receiving it for a brief period of time and this past week they halted my benefits stating they understand I was fired! What? Now I have to wait for an interview call from unemployment place and they said if all goes well this could take up to seven weeks.I am devastated. How will I live? Is there anything I can do? How could an employer fib and get away with this? So inhumane!|
|anon31803 Post 2||So that means you were fired?|
|kdeb Post 1||I was told by my boss that I was laid off because there were no orders coming in. One of the boss' family members was also laid off at that time. Last week via e-mail we were chatting, and she e-mailed me back that “unfortunately we were *not* being called back”. When I got laid off, I asked if I would be called back, looking him straight in the eye. His reply was “I sure hope so”. I have been actively looking for employment, but this bothers me.|
Finding Work After Being Fired (Without Lying About It)
Getting fired from a job is unpleasant enough in its own right. Concerns about future employment prospects are often quick to follow. Fortunately, being let go from a position doesn’t mean that your career is over… but you do need to be smart about your next steps.
What Were You Fired For?
How you approach your job search after your dismissal depends on what you were fired for, suggested career management consultant Karen Kodzik.
If it was for gross misconduct, embezzlement, or some kind of illegal activity, it’s important to be up-front about it—both with prospective employers and recruiters.
“Sometimes people try to pretty it up and spin it in the positive, and that can be dangerous,” she said.
If you gloss over what you did and a prospective employer finds out the severity of it, they’re not going to think well of you. Instead, Kodzik recommends fessing up with honesty and humility, as well as an explanation of what you’ve done differently to move past the incident.On the other hand, if you were fired for other reasons, such as not getting along with a manager, the key is to have a story around the incident without placing blame on your former employer.
Instead of railing about the evilness of your ex-boss, for example, you can point out that your styles were incompatible and that you had a difference in how you wanted to accomplish common goals.
You can also list ways that you tried to fix the issue and work with one another before splitting.
In both cases, Kodzik recommends keeping your explanation fairly brief during an interview.
To Include or Not to Include
It’s tempting to simply leave certain jobs off your résumé entirely, and that’s something you can probably do for a position that only lasted for, say, six months. But if you’ve been at a job for fifteen years, you have to weigh the pluses and minuses of having that large of an employment gap.
Even if you do leave certain positions off your résumé, Kodzik recommends including them in online applications. “The application is what is used for the background check and employment verification,” said. If a job shows up on a background check or employment verification and you didn’t claim it on your application, “that would be suspect and could be grounds for them not hiring you.”
Whether you were fired for a good reason or a bad one, career management expert Laura Lee Rose recommends being very specific when describing the incident during a job interview.
For example, she explained, if you were fired after ignoring emails sent during your vacation or late at night, “Instead of saying, ‘Oh, my boss was unreasonable,’ say, ‘The hours they expected me to work seemed unreasonable to me—I was expected to respond to emails immediately after hours.” You can then follow up by saying something along the lines of: “I understand there may be certain times I need to work extra hours, but in this position, it was constant.”
But if the new position expects the same types of hours, this explanation may not help you land the job. In a similar fashion, Rose recommends not saying a position you were fired from was “a bad fit” if you’re applying for the exact same type of position. That would make it difficult to make the case that the position you’re interviewing for is a good fit.
Keep the Conversation Moving
Try not to spend any more time than necessary discussing the position you were fired from. “I would continually focus on the new position and ask questions to keep the interview moving forward,” Lee advised.
After briefly answering questions about the last position, ask questions about the current job opportunity, what the company expects from the person filling the position, and what characteristics they’re looking for.
You can then explain how you fit those criteria.
Lee also recommends practicing fielding the questions you’re ly to be asked until you feel more comfortable discussing the situation with someone.
Companies have different policies about what information they provide to prospective employers. Many will only verify the dates of your employment and perhaps your salary.
However, recruiters sometimes ask whether you are eligible for rehire.
Keep in mind that they are looking for a pattern—so if you have multiple previous employers and good relationships with most of them, they may view the problematic one on your résumé as an outlier.
As far as references go, it’s important to use people who will speak highly of you.
If you are unsure whether someone will make a good reference, Kodzik said, you can proactively ask them what they’ll say.
It’s better to have glowing references from less-recent jobs than a mediocre one from a more recent one, so make sure to include people who will speak to your strengths rather than your weaknesses.
Though it’s important to craft what you’re going to say about why you were fired ahead of time, Kodzik points out that this is often a bigger deal in people’s heads: “As long as your story is short, precise, true, and forward oriented—focused on what you’re going to do next—you’re going to be fine.”