Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
As employers consider strategies for adapting the size of their workforces to meet changing business demands and technologies, what guidance should be top-of-mind?
When considering reducing the size of your workforce, often the best – and most defensible – results may be achieved by focusing first on the business priorities and the resulting structure of the organization. This should be done before any assessment and decisions are made as to individual employees. In this model, employers are focusing on the operational priorities to make decisions regarding the new organizational chart.
When assessing individual employees, employers should keep several potential issues in mind. While performance is certainly a factor that many employers can, and should, consider as part of a workforce reduction, reductions in force or “RIFs” should not be a substitute for performance management. Additionally, where performance is considered as part of the selection criteria for a RIF, it is a good idea to ensure that the RIF decisions also align with historical performance reviews, and where they don’t there is a strong justification that is contemporaneously documented.
Selection criteria created for the purposes of ranking or selecting individuals for a reduction in force should also be compared with historic performance reviews. Rankings made for the purpose of selecting individuals for a RIF are susceptible to attack as being results orientated. Such allegations often become louder when the rankings do not match ratings or comments provided in historical performance evaluations. Moreover, management will inevitably want to make exceptions whichever selection criteria is settled upon for a particular group, and there can be strong operational justifications for doing so. However, any exceptions should be limited, carefully-scrutinized, and documented.
There are many considerations when restructuring your workforce beyond individual selection decisions. Please remember to consult your Littler attorney if you need, or are seeking guidance on these issues.