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1. FEATURE STORY:
LAYOFF LAWSUITS MAY BECOME TOUGHER FOR
EMPLOYERS TO DEFEND AGAINST

Depending on what the U.S. Supreme Court decides in its next term beginning in October, employers might have a tougher time defending against discrimination claims prompted by a layoff/reduction-in-force. The High Court agreed to review a 10th Circuit Court of Appeals decision that a laid-off employee who alleged a companywide policy of age discrimination could introduce testimony from other terminated employees who worked in different departments and were supervised by different managers. (Sprint/United Management Co. v. Mendelsohn, U.S. Sup. Ct., No. 06-1221, 2007)

The outcome of this case is significant because employees generally cannot support discrimination claims with testimony from non-similarly-situated employees. Having different supervisors is typically one of the signs that the employees are not similarly-situated. But the 10th Circuit explained that the same-supervisor rule applies where the employee was disciplined and the individual supervisor's motives are called into question. This isn't the case in Mendelsohn, where the employee claims there is a companywide policy of discrimination in which all supervisors were allegedly involved.

Said the 10th Circuit: "Although [the employee] and the other employees worked under different supervisors, [the employer] terminated all of them within a year as part of an ongoing, companywide RIF. All the employees were in the protected age group, and their selection to the RIF was based on similar criteria. Accordingly, testimony concerning the other employees' circumstances was relevant to [the employer's] discriminatory intent." (Mendelsohn v. Sprint/United Management Co., 10th Cir., No. 05-3150, 2006)

By reducing the likelihood of a layoff impacting a particular group of employees, regardless of which department or supervisor they work for; and by being able to show that age, sex, race, etc., did not factor into the decision, no matter who the decision-makers are, employers should be able to dodge potential lawsuits.

Overcome the legal risks associated with layoffs by showing employees — or a judge and jury — that your company used reasonable, non-discriminatory criteria when selecting employees. Here's how.

• Be objective. Base the layoff on tangible criteria, such as attendance records, to lessen employees' suspicion of bias.

• Add subjective criteria to the mix, if necessary. You may find that you don't have enough employees with poor attendance to meet layoff goals. So also use subjective criteria, such as attitude, as long as supervisors or managers can support that reason with specific results and examples.

• Establish a tiebreaker. Some employees might rank equally. Prepare for that possibility by having additional objective criteria (e.g., length of employment) already determined with which to further rank employees.

• Consider individual department needs. You might not be able to use the same criteria for evaluating your entire workforce. In that case, use criteria specific to each department/work group. Example: For delivery drivers, number of accidents or traffic violations.

For more ways to effectively roll out layoffs without a hint of discrimination, check out AHI's Complete Employee Termination Kit. You will also find customizable forms specifically for layoffs, such as a Notification of Layoff letter, and a helpful Termination Meeting Checklist to use for any type of employee termination.

2. CATHIE'S CORNER:
EMPLOYEE INCENTIVES: USE YOUR IMAGINATION

There are plenty of different ways employers can let their employees know they care about them. Employees tend to jump ship when they feel that their employer has no interest in their concerns and feelings.

There are things you can do for the entire office. For example, hosting an ice cream social in the cafeteria on a Friday afternoon, or buying lunch for the staff. Sometimes these events can be spontaneous — "Just because it's Thursday." Or they can be tied to a specific event — "Lunch is on us because the office met its sales goal for the month." We even managed to tie in a diversity theme for one company lunch. We had everyone bring in a covered dish that represented their national origin. One die-hard American brought franks and beans.

Other times you might want to recognize individual employees for some accomplishment, or even just to say "thank you" for a job well done. It can be something tangible like a gift card, an extra day off with pay, or a gift certificate for a massage or a round of golf. There can be a public acknowledgement of their accomplishment in the company newsletter or posted on the company intranet. Or you can even put a note that says "thank you" into their paycheck. Don't ever underestimate the value of saying thanks!

Recognition of special events is also something most employees appreciate. I worked under one CEO who on the first of every month would have me pull a list of all the employees with birthdays in that month. Then, on their birthday, he'd give them a quick call just to say "best wishes." Even if they were traveling for business or on vacation at home, they'd get their birthday call. They loved it.

Employee incentives are especially important when the company is going through a difficult period. A few years ago, after a layoff that cut our staff by about a third, we realized that we had a morale problem. So, working with a couple of strategically chosen assistants, I came into the office after hours one night and placed a carnation on everyone's desk.

The next day, everyone was very curious about where the carnations had come from. An e-mail thread was started with questions and silly suggestions, to which even the CEO and COO added their thoughts. Since I'd had an accomplice in our branch office in another state, every employee in the company was involved in the game.

But then a concern arose. An employee who was a citizen of a European country wondered if the flowers were a way of softening up the staff for still more layoffs. Where he came from, a gift of flowers sometimes signified death.

When this concern found its way into the mainstream, my accomplices and I gave up the game and admitted that we were responsible and that our only motive was to raise everyone's spirits. And it had worked...for a little while, at least!

Will things like this solve your retention and morale problems? Not completely. There are always going to be some employees who are never satisfied, and an employee who is determined to leave will eventually do so. But employee incentives such as I've described can make a difference in your employees' attitude. Employees who are happy and who believe their employer cares about them, instead of just the bottom line, is much more likely to stick with you.

See what kind of incentives you can come up with. The only limit is your own imagination!

Catherine Bannon is the President of HR by Request, Inc. in Marshfield, MA (catherine.bannon@gmail.com). Bannon worked for 10 years in HR management before starting her consulting firm.

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