O&MM Fabricator - January/February 2018 - 49

As difficult as the task may be, fiscal
reality sometimes makes employee layoffs
unavoidable. When your payroll costs climb
to unacceptable levels, or when an individual
employee's performance is unacceptable, it's
best to take appropriate action.
"Many owners and managers delay layoffs out of concern for their employees,"
says Kerim Fidel, General Counsel for SOI,
Charlotte, North Carolina, a professional
employer organization. "This may result in
deferring layoffs beyond an economically
rational point."
"Some of our clients facing the troubling
possibility of employee layoffs have sought
our advice and guidance in how to navigate
a workforce reduction while avoiding potential legal pitfalls," says Sandra Dickerson
President of Your People Professionals, Santa
Maria, California. "Each situation is unique,
but if the employer follows some basic steps
many problems can be avoided.
"First, carefully consider whether there
might be viable alternatives to a layoff. Perhaps
you can find other cost-cutting measures that
will let you preserve your major investment in
your employees. Consider the long term costs
of replacing your talent investment when the
economy picks up and satisfactory workers
are again in short supply."
Fidel agrees. "While layoffs are seen as a
cost-cutting measure, there are significant
costs associated with them," he says. "These
include potential increases in unemployment
contribution rates, severance pay, and exposure to layoff-related legal action. Soft costs
include loss of confidence among customers
and remaining employees, and forcing talented
employees to find work elsewhere, possibly
with your competitors."
Still, there are times when layoffs are the
only practical alternative. "When that happens," says Dickerson, "you must follow the
most objective and uniform selection criteria
possible. Be careful to ensure the layoffs will
not have a disproportionate effect on employees in a protected class. Protected classes
include minorities, women, older workers, and
the disabled."
Dickerson also cautions against using
layoffs as an opportunity to eliminate difficult or disliked employees."That's the
wrong approach if you want to avoid legal
challenges," she says. "Remember, unlike a
termination for cause, a layoff is the elimination of a position, not a particular employee.
Focus on the skills you will need to keep your

Six Questions to Ask Yourself Before
You Terminate an Employee for Cause
1. Have you given the employee prior notice of unsatisfactory job performance, violation of rules, or other conduct along with warnings that these violations could lead to
termination?
2. Have you documented these warnings in writing?
3. Is the reason for terminating this employee in line with past practice or existing policies?
4. Has this same conduct by another employee been forgiven and not resulted in
termination?
5. Did this employee ever receive any assurances, written or oral, implied or stated,
regarding job security or permanency of employment?
6. Most important: Will your termination of this employee violate any anti-discrimination
laws or other federal, state, or local statutes?
business viable, and be sure to document
the criteria you use to decide who stays and
who goes. The size of your business may
also subject you to legal notice requirements.
Before you make layoff announcements, seek
professional advice if you have more than a
few employees.
"Lastly, be sensitive and make every effort
to protect employee privacy and dignity
throughout the layoff process. Be prepared
to address the increased stress levels of your
remaining employees who may be assuming
added responsibilities and facing their own
uncertainties about what the future holds."
Today, with the increasing risk of costly
legal complications when discharging an
employee, even for purely business reasons,
it's important that you keep yourself aware of
the legal pitfalls surrounding that task.
Every year, thousands of employers, from
the largest to the smallest, are being hauled
into court by former employees claiming
that they were fired illegally. Many of those
employees are winning substantial judgments
against their former bosses.
"It costs nothing for an employee to file a
charge with the EEOC or state fair employment practices agency," cautions attorney
James P. McElligott, Jr., McGuireWoods, LLP,
Richmond, Virginia. "State and federal agencies can investigate employers for retaliation
charges based on OSHA, wage and hour, environmental, FMLA, or other violations. In addition to the expense of legal fees, employers
often must spend hours trying to reconstruct
and justify their actions. Moral: do it right the
first time."
What you need to be especially sensitive to is the risk of lawsuits based on some
form of discrimination. "Every employee

has a race, a gender, a religion," says attorney Beth Schroeder, Silver & Freedman,
Los Angeles, California. "So, every employee,
even new and probationary ones, falls into at
least one so-called 'protected' class."
Here are a few suggestions that will help
you to avoid the nightmare of a wrongful termination lawsuit.
Keep Lines of
Communication Open
Many wrongful termination lawsuits have their roots in a misunderstanding on the part of the employee. Often, that
misunderstanding involves the reason for
the termination.
"Many employers are under the impression
that the less communicated to an employee
about the termination, the better. My 18 years
of experience in both counseling employers
and defending lawsuits suggests otherwise,"
says attorney Schroeder.
"The more an employee understands where
he or she stands and the reason for the employer's actions, the less angry, frustrated and suspicious the employee is likely to become. It is
that anger, frustration, and suspicion that drives
terminated employees to attorneys."
Layoffs due solely to poor business conditions aren't likely to be the cause of legal problems. However, it's critically important that the
employee be made aware that the separation
was not due to his or her job performance.

1

Put it in Writing
Labor experts agree that careful
documentation is an essential part
of every employee termination, especially a
termination for cause. Incidents or behavior
leading up to termination for a reason should

2

January/February 2018 * O&MM Fabricator | 49



Table of Contents for the Digital Edition of O&MM Fabricator - January/February 2018

President’s Letter
Letter From the Executive Director
NOMMA Network
NOMMA Education Foundation
2018 Metalfab / Fencetech Attendee Brochure
Three Things You Need to Know* to Save Money and Time When Commissioning Custom Metal Castings
The Collective Mind Gate Series - Part Vi
Change Orders
Women in Industry
What Experience Modifiers Do, and What You Can Do About It
How to Handle Your Toughest Employee Problem
Supplier Members
New & Returning NOMMA Members & Iron Club Members
Gold Members
Take a Stroll Down Memory Lane - Nomma’s First Years
2018 Product Preview
Index of Advertisers
O&MM Fabricator - January/February 2018 - Intro
O&MM Fabricator - January/February 2018 - cover1
O&MM Fabricator - January/February 2018 - cover2
O&MM Fabricator - January/February 2018 - 3
O&MM Fabricator - January/February 2018 - 4
O&MM Fabricator - January/February 2018 - 5
O&MM Fabricator - January/February 2018 - 6
O&MM Fabricator - January/February 2018 - 7
O&MM Fabricator - January/February 2018 - 8
O&MM Fabricator - January/February 2018 - 9
O&MM Fabricator - January/February 2018 - 10
O&MM Fabricator - January/February 2018 - President’s Letter
O&MM Fabricator - January/February 2018 - 12
O&MM Fabricator - January/February 2018 - Letter From the Executive Director
O&MM Fabricator - January/February 2018 - 14
O&MM Fabricator - January/February 2018 - NOMMA Network
O&MM Fabricator - January/February 2018 - NOMMA Education Foundation
O&MM Fabricator - January/February 2018 - 17
O&MM Fabricator - January/February 2018 - 18
O&MM Fabricator - January/February 2018 - 2018 Metalfab / Fencetech Attendee Brochure
O&MM Fabricator - January/February 2018 - 20
O&MM Fabricator - January/February 2018 - 21
O&MM Fabricator - January/February 2018 - 22
O&MM Fabricator - January/February 2018 - 23
O&MM Fabricator - January/February 2018 - 24
O&MM Fabricator - January/February 2018 - 25
O&MM Fabricator - January/February 2018 - 26
O&MM Fabricator - January/February 2018 - 27
O&MM Fabricator - January/February 2018 - 28
O&MM Fabricator - January/February 2018 - 29
O&MM Fabricator - January/February 2018 - Three Things You Need to Know* to Save Money and Time When Commissioning Custom Metal Castings
O&MM Fabricator - January/February 2018 - 31
O&MM Fabricator - January/February 2018 - 32
O&MM Fabricator - January/February 2018 - 33
O&MM Fabricator - January/February 2018 - The Collective Mind Gate Series - Part Vi
O&MM Fabricator - January/February 2018 - 35
O&MM Fabricator - January/February 2018 - 36
O&MM Fabricator - January/February 2018 - 37
O&MM Fabricator - January/February 2018 - Change Orders
O&MM Fabricator - January/February 2018 - 39
O&MM Fabricator - January/February 2018 - 40
O&MM Fabricator - January/February 2018 - 41
O&MM Fabricator - January/February 2018 - 42
O&MM Fabricator - January/February 2018 - What Experience Modifiers Do, and What You Can Do About It
O&MM Fabricator - January/February 2018 - 44
O&MM Fabricator - January/February 2018 - 45
O&MM Fabricator - January/February 2018 - 46
O&MM Fabricator - January/February 2018 - How to Handle Your Toughest Employee Problem
O&MM Fabricator - January/February 2018 - 48
O&MM Fabricator - January/February 2018 - 49
O&MM Fabricator - January/February 2018 - 50
O&MM Fabricator - January/February 2018 - 51
O&MM Fabricator - January/February 2018 - 52
O&MM Fabricator - January/February 2018 - Supplier Members
O&MM Fabricator - January/February 2018 - 54
O&MM Fabricator - January/February 2018 - New & Returning NOMMA Members & Iron Club Members
O&MM Fabricator - January/February 2018 - 56
O&MM Fabricator - January/February 2018 - Gold Members
O&MM Fabricator - January/February 2018 - Take a Stroll Down Memory Lane - Nomma’s First Years
O&MM Fabricator - January/February 2018 - 59
O&MM Fabricator - January/February 2018 - 60
O&MM Fabricator - January/February 2018 - 2018 Product Preview
O&MM Fabricator - January/February 2018 - 62
O&MM Fabricator - January/February 2018 - 63
O&MM Fabricator - January/February 2018 - 64
O&MM Fabricator - January/February 2018 - Index of Advertisers
O&MM Fabricator - January/February 2018 - 66
O&MM Fabricator - January/February 2018 - cover3
O&MM Fabricator - January/February 2018 - cover4
O&MM Fabricator - January/February 2018 - outsert1
O&MM Fabricator - January/February 2018 - outsert2
O&MM Fabricator - January/February 2018 - outsert3
O&MM Fabricator - January/February 2018 - outsert4
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