As part of return-to-work from COVID-19, sadly, some employees are not going to return to work.
I’m not talking about those situations in which an employee refuses to return. That’s a different post for a different day.
No, I’m thinking about a situation in which an employer furloughed several workers, but for cost-savings, efficiencies, or other business-related reasons, doesn’t invite all of them to return.
How do you avoid a discrimination lawsuit from the odd person(s) out?
A few weeks ago, I read this federal court opinion involving a bank that claimed that, as part of a reorganization, it laid off an employee who had been out on parental leave to care for his wife and father-in-law. The employee — let’s call him ‘Plaintiff’ — claimed that the bank’s reason for ending his employment was a pretext for discrimination.
Why did Plaintiff assume this?
Well, according to the opinion, Plaintiff received many strong annual performance reviews and comments from his managers. As recently as February 2018, a new supervisor told Plaintiff that he “truly appreciated all [Plaintiff’s] help and support … your depth of knowledge, insight, and experience in this space [is] awesome … it’s clear to me that nothing happens without you being involved.”
So, Plaintiff didn’t suspect anything when, in March 2018, he informed the bank that his wife had a disability, her condition had worsened, and he would need to take leave to care for her. And even though his supervisor began an “optimization review” of Plaintiff’s department months before that, as late as May 11, 2018, the bank’s internal documents suggested that the bank intended to retain Plaintiff. But on May 16, 2018 — 12 days before Plaintiff went out on leave — Plaintiff’s supervisor changed his mind and decided to terminate Plaintiff.
So, Plaintiff sued for discrimination.
And, guess what? The court identified four examples of possible pretext:
- The fast descent from praise to pink slip,
- The about-face to go from keeping Plaintiff to firing him,
- There might have been another position available for Plaintiff instead of firing him — there was contradictory evidence from the bank about this, and
- While the bank planned to split Plaintiff’s role into two, one person ended up performing both functions for a little while.
The Court qualified that, “it is possible that none of these inconsistencies, standing alone, could rebut [the bank’s] proffered reason for terminating [Plaintiff],” but “there is enough circumstantial evidence” to allow Plaintiff to advance to a jury trial on his claims.
So, we’re going to have a jury trial.
Or a settlement.
If you are considering not re-hiring all of your furloughed employees or maybe having some additional layoffs, consider doing the following:
- Have documented plan and execute it;
- Base employment decisions on objective criteria rather than subjective mish-mosh;
- Closely scrutinize employment decisions impacting employees with recent positive feedback;
- Don’t rubber stamp someone else’s recommendation for an adverse employment action; instead, vet it carefully;
- Be prepared to explain your decisionmaking respectfully to those employees adversely affected.