According to Richard Sloane, management attorney with Littler Mendelson in DC,
"Meacham forces employers to more carefully evaluate involuntary RIFs. But there are several steps that prudent employers can take to minimize, and effectively manage, their potential exposure to litigation resulting from layoff decisions."
These steps include but are not limited to:
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- Consult legal counsel (in-house and/or outside) to identify and analyze all of the issues to consider before making a layoff decision. "Revisit and update the initial list of issues at various stages in the RIF decision-making process," he added.
- Develop objective, measurable criteria to support RIF decisions. Evaluate the weight assigned to each criterion.
- Train managers on how to assess employees based on these factors. Managers in Meacham were given little guidance on how to assess flexibility and critical skills.
- Have selection decisions approved by a trained team of diverse members of upper management.
- Create and maintain thorough, comprehensive employee records to support RIF decisions.
- Regularly review and evaluate employee performance (e.g., annually, semiannually), since performance typically factors into layoff decisions.
- Evaluate and analyze the statistical impact of a potential RIF. The employer in Meacham analyzed targeted employees for disparate impact based on race and gender, but no similar analysis was performed for age.
Where recruiting comes in is how we assess talent on the intake. I've always made the case for recruiting and organizational development being under the same leadership and taking advantage of the synergies between the two functions.
But this would mean that HR had to be progressive and creative...