The Ins and Outs of a Legally Compliant Reduction in Force

Avoiding Layoff Pitfalls

By John Gannon, Esq.

Last month, on Independence Day, President Trump signed into law the One Big Beautiful Bill Act (OBBB), a nearly 1,000-page bill addressing significant federal tax and spending policies. According to the White House, the OBBB will act “as a catalyst for job creation, domestic investment, and long-term growth.”

But critics are not so sure the legislation will boost job growth. Indeed, many are concerned that deep spending cuts to social safety net programs such as Medicaid and food stamp benefits, coupled with the end of tax credits tied to clean energy, will cause many Americans to lose their job. One study estimates that 1.22 million jobs could be lost in 2029 due to Medicaid and SNAP cuts.

Given these deep spending cuts, coupled with what seems like daily (and sometimes hourly) uncertainly over foreign tariffs, the Trump administration is leading many businesses to consider cutting labor costs, even if only for the short term. In light of this, employers need to understand the legal and practical ramifications when implementing a reduction in force (RIF), which is a more formal term for layoffs. Key aspects include understanding the relevant legal risks, selecting employees fairly, and providing proper communication and support.

John Gannon

“Employers need to be able to provide legitimate, business-based reasons for implementing a workforce reduction. These typically involve economic considerations, such as the loss of key contracts or higher material costs, but could also be the product of a department or company-wide reorganization.”

Legal Issues

To start, employers need to be able to provide legitimate, business-based reasons for implementing a workforce reduction. These typically involve economic considerations, such as the loss of key contracts or higher material costs, but could also be the product of a department or company-wide reorganization. Whatever the reason(s), businesses need to be able to explain in crystal-clear terms why people are losing their jobs.

There are also a host of employment laws that businesses need to be cognizant of when implementing a RIF. In a large-scale workforce reduction, the most important of these laws is the Worker Adjustment and Retraining Notification (WARN) Act, which requires 60 days notice to all affected employees in the event of a mass layoff or plant closing.

The penalties for failure to comply with WARN are steep. WARN Act violations include back pay and benefits for up to 60 days for each affected employee, civil penalties of up to $500 per day of violation, and potential attorneys’ fees for successful lawsuits. Needless to say, determining whether the WARN Act applies is always step number one when businesses are considering a RIF.

Next, employers must ensure that the selection criteria used to determine who will be included in the RIF are non-discriminatory and based on legitimate business needs. This means reasons for selecting an employee for the RIF cannot be tainted by bias based on age, race, gender, or other protected characteristics, including use of Paid Family and Medical Leave or sick leave protected by the Massachusetts Earned Sick Time law.

To that end, employers should develop an documented selection criteria plan for the decision makers prior to announcing the end result to employees. Establish selection factors with the company’s legitimate business needs in mind, trying to keep the selection process focused on objective, legal criteria as much as possible (such as seniority, elimination of unnecessary categories such as part-time and temporary, elimination or consolidation of unnecessary positions. etc.).

Taking this one step further, employers should consider conducting a detailed analysis of the potential for disparate impact discrimination in a workforce reduction. Disparate impact discrimination occurs when a policy, practice, or decision-making process of an employer that appears to be neutral has a negative impact on a protected group of employees.

For example, if a high percentage of those selected for layoff are over age 40, and a significant amount of those retained are under 40, there is a risk that someone will file an age discrimination claim and argue that the method used to evaluate employees had a disparate impact on those over 40, and, therefore, led to their separation.

Disparate impact testing helps organizations recognize and address biases that might exist within their decision making process, even when there’s no intent to discriminate. We suggest that any disparate impact analysis be conducted by an attorney so that any problematic data that is discovered would be protected from disclosure in lawsuit by the attorney-client privilege.

Finally, employers need to be aware of wage payment obligations for those who are laid off. Under the Massachusetts Wage Act, employees who are laid off as part of a RIF must be paid all earned wages — including pay for all accrued and unused vacation — on their last day of employment. Also, if a worker is subject to the terms of an employment contract (as opposed to be employed at-will), that employee might be entitled payout if the employment relationship ends prior to the expiration of the term set out in the employment contract.

Practical Considerations

Employees who are let go as part of a RIF are likely going to expect severance pay to help pay the bills while they look for new employment. That said, there is nothing that requires employers to offer separation agreements to at-will employees being laid off (note that this might be different if the employee is subject to the terms of an employment contract).

However, most employment lawyers and HR professionals will tell you that offering at least some severance, while not legally required, is a best practice. This is because, as noted above, it provides departing employees with some level of financial stability while they are in between jobs. Severance packages also often include payments for continued health insurance or other benefits, easing the transition and potentially reducing out-of-pocket medical expenses for departing employees.

Finally, obtaining signed severance agreements from departing employees mitigates legal risk, as the agreement should include a legally compliant release of claims against the employer. Stated otherwise, employees accept the severance payments, and in exchange, they agree not to bring a legal action against the company. We see this as a win-win for the employee and the employer.

Finally, as far in advance as possible, businesses need to start developing a clear and transparent communication strategy that will be used to explain the RIF to the workforce. This strategy should involve two messages — one for the entire workforce that explains the business needs for the RIF, and another message that is tailored to those who are affected by the RIF.

For those who will be losing their jobs, conduct private meetings to deliver the news and discuss next steps. This meeting should go over the terms of the severance package, if one is being offered. While the meeting should be brief, employees should be given some time to discuss the positives and negatives of their employment experience, as well as ask questions related to post-employment issues such as unemployment and health insurance continuation.

As for the remaining employees, the business should have a plan in place to discuss how the RIF will affect their day-to-day duties. Is there a plan in place to replace the departing workers if business circumstances improve? Will the RIF lead to longer days and more demands for the remaining employees? Does the company plan to lay off more employees within the next few months?

These types of questions, as well as the psychological impact associated with many co-workers (and friends) losing their jobs, is often referred to as workplace survivor syndrome. Leaders in the organization must be prepared to answer questions from remaining employees about their ‘new normal,’ as well as listen and respond to their concerns and fears, in order to avoid workplace survivor syndrome causing more negative workplace ripples than the RIF itself.

Implementing a RIF is no small task. There are serious legal and practical considerations that businesses need to consider as soon as potential layoffs are a topic of conversation during leadership meetings. Be sure to engage experienced employment counsel early on in the process so businesses leaders do not get caught in traps for the unwary during a workforce reduction.

John Gannon is a partner with Springfield-based law firm Skoler, Abbott & Presser, P.C., a law firm exclusively practicing labor and employment law for more than a half-century, focusing on litigation avoidance, employment litigation, and labor law and relations. He specializes in employment law and regularly counsels employers on compliance with state and federal laws; (413) 737-4753.