Jill Kahn Marshall Weighs in on “5 Ways Employers Are Botching Staff Cuts During Pandemic”

Partner Jill Kahn Marshall appears extensively as an employment law expert in Law360’s  “5 Ways Employers Are Botching Staff Cuts During Pandemic.” The piece covers the most frequent and the most detrimental mistakes employers make when reducing their workforce in the pandemic era. Author Vin Gurrieri divides these issues into five categories of mismanagement stemming from the reduction planning (or lack thereof), the often bias-centered decision making process and issues within the mechanics of the process itself.

When planning for a cut in staff, it is important to consider the specifics of each type of reduction and which term to use so that it is clear to the impacted employees how the action will impact their benefits, healthcare and/or chance of returning to work. Employers must also consider how benefits fit into the situation and whether (or for how long) the employee is considered “active” as this classification plays into whether they are eligible for their benefits or if they will qualify for unemployment assistance. It is also worth noting that there are laws including the WARN Act that dictate layoff protocol and should not be ignored just because of trying times.

Employers should be especially aware of protected categories when making decisions about who stays and goes. If they opt not to use clear cut policy and strategy for layoffs (such as dismissing those most recently hired first), the employer may appear to dismiss or select staff to stay in a manner that breaks anti-discrimination laws. The bias issues do not end with reductions in staff, they again return when companies have to decide who to bring back. Ms. Marshall notes that it is just as important to prevent discrimination at this point in the process and that it is key to avoid presuming that someone’s health, gender or age would make them not want to return to the workplace. She clarifies that:

It’s not up to the company to say, ‘This person’s older. I bet they don’t even want to come back,  [so] I’m not going to ask them … They need to ask people without regard for that, and then if people want to raise an accommodation request, that’s up to them.

Neither the terms of the contract nor discrimination laws should be tossed aside just because we are living in a pandemic. Ms. Marshall notes that “Just because there’s a pandemic and a lot of companies are hurting, that does not invalidate the agreement that they already have in place.”

Read the full article on the Law360 website.