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Table of Contents
-
List of Forms by Chapter - Chapter 1 — Introduction
- Chapter 2 — Practical and Legal Considerations Prior to Conducting the Audit
- Chapter 3 — Hiring Process and Related Issues
- Chapter 4 — Federal Government Contractor Considerations
- Chapter 5 — Employment Agreements
- Chapter 6 — Antidiscrimination and Antiharassment Policies and Training
- Chapter 7 — Personnel Records and Posting of Notices
- Chapter 8 — Wage and Hour Issues and Child Labor Laws
- Chapter 9 — Discipline and Termination Issues
- Chapter 10 — Reductions in Force
- I. [10.1] Introduction
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II. Alternatives to Reductions in Force - [10.2] Alternative Means of Cutting Labor Costs Without Cutting Numbers
- Early Retirement Incentive Plans
- [10.3] In General
- [10.4] Older Workers Benefit Protection Act “Safe Harbor” Provision for Early Retirement Incentive Plans
- [10.5] Designing the Early Retirement Incentive Plan
- Setting Early Retirement Incentive Plan Eligibility Parameters
- [10.6] Setting a minimum age for eligibility is permissible
- [10.7] Setting a maximum age for eligibility is impermissible
- [10.8] Using years of service as requirement for participation is permissible
- [10.9] Offering the early retirement incentive plan to only a particular group or subset of employees is permissible
- [10.10] Determining the Early Retirement Incentive Plan Exit Incentive — What Benefits Should the Employer Offer, and What Benefits Are Acceptable Under the Age Discrimination in Employment Act?
- [10.11] Identical benefits or incentives for all eligible employees that are not tied to age are acceptable
- [10.12] Declining benefits are unacceptable
- [10.13] Exceptions to the requirement that early retirement incentive plan incentives must be equal for all eligible employees regardless of age
- [10.14] “Equal cost or equal benefit” defense
- [10.15] “Subsidized portion” offset
- [10.16] Social security supplements
- [10.17] Plans offered to tenured faculty members
- [10.18] Exemption for plans that coordinate retiree healthcare benefits with Medicare or other state-sponsored health benefit plans
- [10.19] Examples of early retirement incentive plan incentives that satisfy the Age Discrimination in Employment Act and Older Workers Benefit Protection Act requirements
- [10.20] Voluntariness of the Program
- Circumstances Surrounding the Offer
- [10.21] Period of time allowed for consideration
- [10.22] Whether employer suggested a consultation with an attorney
- [10.23] Whether the employee had an opportunity to negotiate the terms of the early retirement incentive plan
- [10.24] Information Provided to the Employee
- [10.25] Examples of Approved Early Retirement Incentive Plans
- [10.26] Examples of Unlawful Early Retirement Incentive Plans
- [10.27] Practical Suggestions for Implementing an Early Retirement Incentive Plan
- [10.28] Voluntary Separation Programs
- [10.29] Advantages
- [10.30] Disadvantages
- [10.31] How To Implement a Voluntary Separation Program
- [10.32] Determine Eligibility Criteria
- [10.33] Determine What Will Be the Incentive or Severance
- [10.34] Determine the Window Period
- [10.35] Ensure Voluntariness
- III. Practical Suggestions for Implementing Reductions in Force To Reduce Legal Risks
- Establish the Reasons for the Reduction in Force and Goals Consistent with Those Reasons
- [10.36] Document the Business Reasons for the Reduction in Force
- [10.37] Set Reduction in Force Goals So That They Comport with the Articulated Reasons for Implementing the Reduction in Force
- Initial Planning for the Reduction in Force
- [10.38] Determine the Scope and the Timing of the Reduction in Force
- [10.39] Determine What the Post-Reduction in Force Workforce Will Look Like
- [10.40] Compile Information Regarding the Company’s Demographics
- [10.41] Establish a Transition Review Team
- [10.42] Union Considerations
- [10.43] Examine Contractual Commitments Other than Collective-Bargaining Agreements
- [10.44] Review Personnel Policies
- [10.45] Consider Withdrawing Outstanding Offers and Implementing a Hiring Freeze
- [10.46] Worker Adjustment and Retraining Notification Act Considerations
- [10.47] Determine What Severance Benefits Will Be Offered to Terminating Employees in Exchange for a Waiver/Release of Claims
- Develop the Reduction in Force Selection Process
- [10.48] Establish Criteria To Be Used for Making the Decisions
- [10.49] Prohibited Selection Criteria
- [10.50] Decide Whether To Follow a Formal or an Informal Procedure
- [10.51] Outline the Selection Criteria To Be Used by the Decision-Makers
- [10.52] Select the Decision-Makers
- [10.53] Train the Decision-Makers
- Implement the Decision-Making Process/Procedure
- [10.54] Develop the Candidate Pool
- [10.55] Make Preliminary Decisions
- [10.56] Vet the Preliminary Decisions
- [10.57] Adjust Decisions if Necessary
- [10.58] Finalize Decisions
- [10.59] Communicating the Termination Decisions to Employees
- [10.60] Problems Associated with Hiring New Employees after a Reduction in Force
- IV. Law Relating to Discrimination Claims Resulting from Reductions in Force
- V. Releases and Waivers
- [10.64] In General
- [10.65] Elements of a Valid Release
- [10.66] Additional Minimum Requirements for a Knowing and Voluntary Release of Age Discrimination Claims as Set Forth in the Older Workers Benefit Protection Act
- [10.67] Older Workers Benefit Protection Act 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”
- [10.68] Forty-Five Days To Consider the Release
- [10.69] Statistical Information Regarding Termination Program
- [10.70] Statistical Information When Employer Conducts Successive Reductions in Force
- [10.71] Requirements of the Older Workers Benefit Protection Act Strictly Construed by the Supreme Court
- [10.72] Additional Minimum Requirements When a Release or Separation Agreement Contains Non-Disparagement or Confidentiality Provisions Covering Harassment or Discrimination
- [10.73] Effect of Release on Employee’s Ability To Pursue Equal Employment Opportunity Commission Charges
- [10.74] Other Suggested Provisions for Releases
- VI. Considerations Under the Worker Adjustment and Retraining Notification Act
- [10.75] In General — Comparison Chart
- [10.76] Definitions of “Plant Closing” and “Mass Layoff”
- [10.77] Single Site of Employment
- [10.78] Facility or Operating Unit
- [10.79] Employment Loss
- [10.80] Termination of Employment
- [10.81] Layoff of More than Six Months
- [10.82] Reduction in Hours
- [10.83] Elimination of Employment Loss
- [10.84] Aggregation of Terminated Employees for Worker Adjustment and Retraining Notification Act Purposes
- Worker Adjustment and Retraining Notification Act Notice Requirements
- [10.85] To Whom Notice Must Be Given
- [10.86] Contents of the Worker Adjustment and Retraining Notification Act Notice
- [10.87] Notices to Affected Employees
- [10.88] Notices to Bargaining Unit Representatives
- [10.89] Notices to Government Officials
- [10.90] Other Notice Issues
- [10.91] Timing of the Worker Adjustment and Retraining Notification Act Notice
- [10.92] Liability and Penalties
- [10.93] Exceptions to the Worker Adjustment and Retraining Notification Act’s 60-Day Notice Period
- [10.94] Analytical Steps to Complying with the Worker Adjustment and Retraining Notification Act
- Chapter 11 — Compliance with the National Labor Relations Act
- Chapter 12 — Independent Contractors and Other Nonemployees
- Chapter 13 — The Audit Report and Follow-Up
- Chapter 14 — Workers’ Compensation Compliance and Preparedness Audit
- Chapter 15 — Appendix
Authors
Conducting the Employment Practices Audit (ARCHIVED 2020 EDITION)
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