Companies utilize layoffs / reductions in force (“RIF”) for a variety of reasons.  Often times a business has to lay off employees due to economic issues.  Other times, companies eliminate multiple positions that are redundant.  Unfortunately, some employers use layoffs to hide unlawful motives for getting rid of certain employees.  

Here are some common questions that people ask regarding layoffs / reductions in force.

Are employees entitled to ADVANCE notice of Layoffs / Reductions In Force?

If the layoff/reduction in force meets certain requirements under the WARN Act, employers must give 60 days advance notice.

  • When a company closes an entire facility or has a “mass layoff.”
    • The employer has 100 or more employees who worked a certain number of hours, as defined in the Act.
    • The number of employees let go must meet the criteria in the Act.
  • The WARN Act also applies when jobs are lost during a business’s sale (including partial sale or asset sale).

Even if the WARN Act doesn’t apply, check to see if your State has a law covering layoffs/reductions in force.

What circumstances may indicate something unlawful about a Layoff / Reduction In Force?

  • The majority of laid-off employees are part of the same legally protected category. 
    • Does the evidence suggest that the company targeted older workers for a layoff?
    • Did a large percentage of the layoff include people who took FMLA leave and/or have disabilities?
    • Did the layoff affect a large group of people of the same race, national origin, or religion (versus the people whom the company retained)?


  • Did the company choose to lay off people who are more qualified than the employees it retained?
    • Look for evidence as to “why” the company chose the employee for the layoff.  If the stated reason makes no sense, explore whether there could be unlawful discriminatory or retaliatory motives behind the decision.
    • Example:  A female employee reports sexual harassment by her boss to HR.  Six weeks later the company started planning a layoff.  The boss decides to lay off the female employee who complained about him.  That female employee worked for the company for many years with no problems. Yet, the company retained her male counterpart who received multiple write-ups and a bad performance review from the same boss.  These facts suggest Under these circumstances, it appears that the sexual harassment complaint may be the underlying reason why the boss chose his female employee over the male.  If so, there could be a viable claim of retaliation.

Do companies have to disclose which employees were let go?

Under federal law, the Older Workers Benefits Protection Act (OWBPA) applies when two conditions are met.   First, a covered employer lays off more than one employee who is 40 or older.  In addition, the employer offers those employees a severance package in exchange for a release of legal claims.  Under such circumstances, the company must provide a list of all employees subject to the layoff, including their ages.  In addition, the employees get 45 days to consider the severance agreement.  The employees also have a right to revoke the agreement within 7 days of its execution.

Be sure to check to see if your State has a law providing additional protection and/or requiring disclosure of employees affected by layoffs/reductions in force.


IS severance required?

As a general rule, the law does not require employers to provide severance to laid off employees.  With that said, sometimes employees have a contractual right to severance.  For instance, if there is an employment agreement that calls for severance when termination occurs due to no fault on the employee’s part.  In addition, there may be a contractual issue if a company has a policy or practice of offering severance to terminated employees who are not fired for “cause.”  Contract issues arise under State laws, which require research in the specific jurisdiction to see if a claim is viable.

NOTE:  when an employer offers severance (even if not required) in exchange for a release of claims, the proposed agreement must meet federal and state legal requirements.  For example, if a person over 40 is asked to waive their right to bring an age discrimination claim, the Older Workers Benefits Protection Act (OWBPA) places additional requirements on the severance agreement.   Likewise, the contract must carve out exceptions for certain legal rights that cannot be waived. For example, an employee cannot release the right to file an EEOC Charge (although damages may be waived) or certain protections afforded under the National Labor Relations Act.

Of course, always check to see if State laws offer any additional protections.

Do you (employer or individual) need legal assistance to understand a Layoff/Reduction In Force and/or Severance Issue? 


This web site (including links, blogs or other content) is provided for informational purposes only and is not to be considered as legal advice.  Any interaction through this web site, including but not limited to any comments or the submission of a consultation request, does not create an expressed or implied attorney-client relationship. 

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