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Table of Contents
-
Chapter 1 — Introduction - Chapter 2 — Practical and Legal Considerations Prior to Conducting the Audit
- Chapter 3 — Hiring Process and Related Issues
- Chapter 4 — Affirmative Action and Drug-Free Workplaces: Federal Government Contractor Considerations
- Chapter 5 — Employment Agreements
- Chapter 6 — Employee Handbooks
- Chapter 7 — Antidiscrimination and Antiarassment Policies and Training
- Chapter 8 — Personnel Records and Posting of Notices
- Chapter 9 — Wage and Hour Issues and Child Labor Laws
- Chapter 10 — Discipline and Termination Issues
- Chapter 11 — Reductions in Force
- I. [11.1] Introduction
-
II. Alternatives to Reductions in Force - [11.2] Alternative Means of Cutting Labor Costs Without Cutting Numbers
- Early Retirement Incentive Plans
- [11.3] In General
- [11.4] OWBPA “Safe Harbor” Provision for ERIPs
- [11.5] Designing the ERIP
- Setting ERIP Eligibility Parameters
- [11.6] Setting a minimum age for eligibility is permissible
- [11.7] Setting a maximum age for eligibility is impermissible
- [11.8] Using years of service as requirement for participation is permissible
- [11.9] Offering the ERIP to only a particular group or subset of employees is permissible
- [11.10] Determining the ERIP Exit Incentive — What Benefits Should the Employer Offer, and What Benefits Are Acceptable Under the ADEA?
- [11.11] Identical benefits or incentives for all eligible employees that are not tied to age are acceptable
- [11.12] Declining benefits are unacceptable
- [11.13] Exceptions to the requirement that ERIP incentives must be equal for all eligible employees regardless of age
- [11.14] “Equal cost or equal benefit” defense
- [11.15] “Subsidized portion” offset
- [11.16] Social security supplements
- [11.17] Plans offered to tenured faculty members
- [11.18] Exemption for plans that coordinate retiree healthcare benefits with Medicare or other state-sponsored health benefit plans
- [11.19] Examples of ERIP incentives that satisfy the ADEA and OWBPA requirements
- [11.20] Voluntariness of the Program
- Circumstances Surrounding the Offer
- [11.21] Period of time allowed for consideration
- [11.22] Whether employer suggested a consultation with an attorney
- [11.23] Whether the employee had an opportunity to negotiate the terms of the ERIP
- [11.24] Information Provided to the Employee
- [11.25] Examples of Approved Early Retirement Incentive Plans
- [11.26] Examples of Unlawful Early Retirement Incentive Plans
- [11.27] Practical Suggestions for Implementing an Early Retirement Incentive Plan
- [11.28] Voluntary Separation Programs
- [11.29] Advantages
- [11.30] Disadvantages
- [11.31] How To Implement a VSP
- [11.32] Determine Eligibility Criteria
- [11.33] Determine What Will Be the Incentive or Severance
- [11.34] Determine the Window Period
- [11.35] Ensure Voluntariness
- III. Practical Suggestions for Implementing RIFs To Reduce Legal Risks
- Establish the Reasons for the RIF and Goals Consistent with Those Reasons
- [11.36] Document the Business Reasons for the RIF
- [11.37] Set RIF Goals So That They Comport with the Articulated Reasons for Implementing the RIF
- Initial Planning for the RIF
- [11.38] Determine the Scope and the Timing of the RIF
- [11.39] Determine What the Post-RIF Workforce Will Look Like
- [11.40] Compile Information Regarding the Company’s Demographics
- [11.41] Establish a Transition Review Team
- [11.42] Union Considerations
- [11.43] Examine Contractual Commitments Other than Collective Bargaining Agreements
- [11.44] Review Personnel Policies
- [11.45] Consider Withdrawing Outstanding Offers and Implementing a Hiring Freeze
- [11.46] WARN Act Considerations
- [11.47] Determine What Severance Benefits Will Be Offered to Terminating Employees in Exchange for a Waiver/Release of Claims
- Develop the RIF Selection Process
- [11.48] Establish Criteria To Be Used for Making the Decisions
- [11.49] Prohibited Selection Criteria
- [11.50] Decide Whether To Follow a Formal or an Informal Procedure
- [11.51] Outline the Selection Criteria To Be Used by the Decision Makers
- [11.52] Select the Decision Makers
- [11.53] Train the Decision Makers
- Implement the Decision-Making Process/Procedure
- [11.54] Develop the Candidate Pool
- [11.55] Make Preliminary Decisions
- [11.56] Vet the Preliminary Decisions
- [11.57] Adjust Decisions if Necessary
- [11.58] Finalize Decisions
- [11.59] Communicating the Termination Decisions to Employees
- [11.60] Problems Associated with Hiring New Employees after a RIF
- IV. Law Relating to Discrimination Claims Resulting from RIFs
- V. Releases and Waivers
- [11.64] In General
- [11.65] Elements of a Valid Release
- [11.66] Additional Minimum Requirements for a Knowing and Voluntary Release of Age Discrimination Claims as Set Forth in the OWBPA
- [11.67] OWBPA Requirements for a Release of Age Claims as Part of an “Exit Incentive or Other Employment Termination Program Offered to a Group or Class of Employees”
- [11.68] 45 Days To Consider the Release
- [11.69] Statistical Information Regarding Termination Program
- [11.70] Statistical Information When Employer Conducts Successive RIFs
- [11.71] Requirements of the OWBPA Strictly Construed by the Supreme Court
- [11.72] Effect of Release on Employee’s Ability To Pursue EEOC Charges
- [11.73] Other Suggested Provisions for Releases
- VI. Considerations Under the Worker Adjustment and Retraining Notification Act
- [11.74] In General — Comparison Chart
- [11.75] Definitions of “Plant Closing” and “Mass Layoff”
- [11.76] Single Site of Employment
- [11.77] Facility or Operating Unit
- [11.78] Employment Loss
- [11.79] Termination of Employment
- [11.80] Layoff of More than Six Months
- [11.81] Reduction in Hours
- [11.82] Elimination of Employment Loss
- [11.83] Aggregation of Terminated Employees for WARN Act Purposes
- WARN Notice Requirements
- [11.84] To Whom Notice Must Be Given
- [11.85] Contents of the WARN Notice
- [11.86] Notices to Affected Employees
- [11.87] Notices to Bargaining Unit Representatives
- [11.88] Notices to Government Officials
- [11.89] Other Notice Issues
- [11.90] Timing of the WARN Notice
- [11.91] Liability and Penalties
- [11.92] Exceptions to WARN Act’s 60-Day Notice Period
- [11.93] Analytical Steps to Complying with the WARN Act
- Chapter 12 — Compliance with the NLRA
- Chapter 13 — Independent Contractors and Other Nonemployees
- Chapter 14 — The Audit Report and Follow-Up
- Chapter 15 — Appendix
- List of Forms
- Table of Cases
- Index
Authors
- Nineveh Alkhas
- Julie Badel
- James S. Barber
- Robert T. Bernstein
- Tracy M. Billows
- Daniel R. Bryer
- Paul H. Burmeister
- Sarah Wilhite Cudahy
- Frank J. Del Barto
- Joshua L. Ditelberg
- Michelle K. Garcia
- James G. Gillingham
- Julie L. Gottshall
- Jane S. Hahn
- Michael F. Hughes
- Kaitlyn N. Jakubowski
- Matthew P. Kellam
- David E. Krchak
- John F. Kuenstler
- Michael R. Lied
- Noah G. Lipschultz
- Richard P. McArdle
- Marco A. Moreno
- Jill P. O'Brien
- Jeffrey A. Risch
- Jeffrey L. Rudd
- Morgan M. Ruey
- Jill Russell
- Nancy E. Sasamoto
- Samuel J. Schumer
- Mark J. Sobczak
- Norma W. Zeitler
Conducting the Employment Practices Audit (ARCHIVED 2010 EDITION & 2013 SUPPLEMENT)
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