Reductions in Force and Reorganizations
We assist companies in planning, documenting, and executing reductions in force and reorganizations (RIFs), whether they occur in the context of negative market forces, outsourcing, the sale or acquisition of a business, a merger or joint venture, or the like. We advise clients on the overall process from start to finish, emphasizing how the different parts of the process fit together and how actions taken — or not taken — early on can affect an employer's ability to successfully defend the process and individual decisions from challenge. Our services include
- Helping clients train the employees who will be involved in structuring and implementing the RIF to minimize the risk of discrimination and maximize the quality of the decision-making process and individual decisions, and to document that training.
- Helping clients develop and implement the process for determining what the "go-forward" organization will look like and then formulating the criteria and selection process they will use to decide which employees fill the available positions and which employees are terminated.
- Helping clients prepare documentation confirming the business reasons for the RIF, consistent with relevant EEOC regulations, the criteria used to evaluate which employees will be terminated, and the reasons for the individual decisions themselves.
- Reviewing individual decisions and related documentation, particularly those that are perceived to be high risk.
- Performing attorney-client privileged statistical reviews and analyses of "before and after" workforce compositions for purposes of identifying the risk of adverse impact claims in connection with the RIF, based on tests of statistical significance and then advising on the associated risks of moving forward with the proposed decisions or alternative decisions after first considering various refinements to the statistical analyses.
- Analyzing the impact of a RIF on each collective bargaining unit’s scope and whether the RIF decision itself must be bargained with applicable unions, as well as how "effects bargaining" with the unions should be handled.
- Assessing the impact of the RIF on employee benefit plans, if any, and developing solutions to address any problems.
- Assessing the impact of immigration law issues raised by the RIF, if any, and developing solutions to address any problems.
- Assessing whether the RIF will trigger any employer notice obligations under the federal WARN Act or any state or local mini-WARN Acts, and working with clients to fulfill those obligations.
- Addressing employee relations and communication issues involving numerous audiences related to the RIF and, as needed, working with clients to prepare training materials for managers involved in the communication process.
- Considering severance benefit issues such as type and amount of benefits, the impact of a terminated employee's being hired by the acquiring employer in the event of a sale, the impact of an employee's turning down the offer of a lesser position or a relocation, and the impact of existing employment agreements.
- Preparing waiver and release documents and determining the appropriate "decisional unit" in connection with any severance benefits provided to employees terminated as part of the RIF, to comply with the Older Workers Benefit Protection Act and any applicable state laws.