“Business Insider” Interviews Deena Merlen on Microsoft Layoffs

RPJ’s Deena Merlen was recently interviewed by Business Insider about Microsoft’s large-scale waves of layoffs.  Asked whether Microsoft’s recent actions are actually unlawful, Ms. Merlen noted that some employees may seek to argue that they were chosen to be included in the layoffs not because of non-discriminatory, performance-based reasons as alleged by Microsoft but rather due to some unlawful consideration or basis, such as unlawful discrimination or unlawful retaliation.  As Ms. Merlen told Business Insider, in the absence of an agreement to the contrary (such as the terms of a collective bargaining agreement or an Employment Agreement), “Employers generally have the right to fire, just as an employee has the right to quit . . . .   As long as Microsoft’s alleged performance-based reasons [for the terminations] are not for some other, unlawful reason, Microsoft is within its rights to engage in these layoffs.”

There may be other limitations that impact an employer’s right to fire.  For example, there are laws (such as the federal WARN Act and the “Mini-WARN” laws in certain states) that in some circumstances will require an employer to provide employees advance warning that they will be laid off in a pending reduction in force.  When such laws apply, the covered employers are legally required to provide a minimum amount of advance notice, the number of days of which is set by the applicable law.  In these cases, the employer still has the right to fire but the issue is when, with how much notice. 

The Business Insider article also notes that Microsoft has reportedly been laying off employees without offering severance pay.  Again, however, in the absence of an agreement to the contrary, employers generally have no legal obligation to provide severance pay. As Ms. Merlen noted to Business Insider, even if “the company has no obligation to provide severance, [severance] agreements often come with a release of legal claims that can protect the company from lawsuits.”

We will continue to keep our readers informed on this developing story as employment law issues at Microsoft and the greater technology industry continue to evolve.

Read the full Business Insider article here.

This article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact RPJ Partner Deena R. Merlen, who counsels clients in areas of employment and labor law, intellectual property, media and entertainment, general business law, commercial transactions and dispute resolution. Ms. Merlen is admitted to practice law in Connecticut and New York.