It’s not uncommon for employers to try to avoid the risk of being sued when firing a worker by classifying an illegal firing as a lay-off. Determining whether a particular firing is a lay-off or wrongful termination is often not easy. An employer might try to justify the lay-off by claiming restructuring, reduction in force, elimination of that specific position, etc. This is an easier way for an employer to get rid of older workers, disabled workers or workers who complain about discrimination or harassment, than firing them for performance issues or some kind of policy violation. This is especially true if this is a long-time employee who hasn’t committed serious violations. After all, terminating that type of employee for a petty reason would look highly suspicious.
While proving that a lay-off is just a cover-up for a wrongful termination is often challenging, there are usually a few facts that suggest that there is more to the story than what the employer suggests. There are different types of evidence that may suggestion it is worth investigating whether a discrimination and wrongful termination claim can be made based on the seemingly lawful lay-off. Often, damning evidence can be uncovered through e-mails between managers and decision makers. Even one email suggesting that the termination was motivated by a discriminatory motive can turn a seemingly innocent lay-off into a wrongful termination case.
Here are five questions you should ask yourself, if you are being laid off, in order to make a preliminary evaluation of whether your lay-off might actually be a disguise for a wrongful termination:
1. Was it an actual lay-off or did the company hire someone else in your place shortly after you were terminated, who performs exactly the same or very similar duties?
It might be worth contacting you former co-workers and finding out the answer to this question, if at all possible. They might not want to talk to you out of fear of retaliation or simply because they just don’t care to get involved, but it can’t hurt at least trying. You can do this yourself or with a help of an attorney, if you don’t feel comfortable doing that.
2. Age Discrimination Disguised As a Lay-Off?
- Are you over 40 and you were replaced by someone 10 or more years younger? Even if the person who replaced you is less than 10 years younger than you, you may still be able to bring a claim for age discrimination if other facts suggest that your age played a role in your termination.
- Are you the oldest or among the oldest employees in the company or in your department?
- Did you notice a pattern of your employer replacing older workers with the younger one by one?
- Are older workers asked to train younger employees for essentially the same duties that the older employees are performing?
- Did the manager make any negative comments about your age, such as telling you that you are not as fast as you used to be? Did your manager encourage you to retire in so many ways? Did he say in so many ways the company really needs younger employees or “fresh blood”?
- Were you terminated shortly after making a harassment or discrimination complaint ? If you have been terminated just a few weeks or even a few months after making a harassment or discrimination complaint due to some insignificant violations or minor, subjective performance issues, this might be used evidence of retaliation and wrongful termination. The sooner after the protected complaint you are terminated and the longer you have been with the employer, the more helpful this kind of timing evidence will be in making a retaliation and wrongful termination claim.
- Did you complain to compliance or upper management about safety violations and have been written up or fired shortly after. If so, you might have a legitimate retaliation and wrongful termination claim.
- Did you manager say or imply in so many ways that he is unhappy about your complaint, saying to you something like “I thought you were a team player and you were on our side”, “I can’t believe you complaint”, “I suggest you keep quite if you want to keep your job” , “You will pay for your complaint.” In one case we handled, our client’s manager, who was extremely unhappy about the complaint against him, posted a picture of a rat on Facebook, calling our client a “no good rat” and “complaining scum”. Obviously, this was a very strong evidence of egregious retaliation. Although this type of “smoking gun” evidence is rare, one such e-mail or Facebook posting can transform the case and make it much stronger than it would otherwise have been.
4. ADA Disability / FMLA Discrimination?
Were you terminated shortly after requesting medical or disability leave? Were you terminated shortly after returning from medical or disability leave? If you have been “laid off” while on medical leave or shortly after returning from leave, and you were the only person laid off, chances are that you have been wrongful termination. It is likely that your employer was concerned that you will be taking more time off in the future for medical reasons and they decided to get rid of you.
5. Were you the only person laid-off in your department?
Were you the only person in your department who was let go, even though you are more senior than others? Were you the only person “laid off” even though your performance reviews were better than those of other employees who were not laid off? If so, an illegal reason for your lay-off might be at play.
As noted above, determining whether your firing was a lay-off or wrongful termination requires detailed analysis of the specific circumstances of your termination. However, if some or most of the above answers suggest that there is more to your termination than a lay-off, you should contact and experienced employment attorney to discuss your legal options. If you were “laid off”, your employer will never admit that you were actually fired for illegal reasons. However, with the right set of facts and evidence you can show that your version of what really happened is much more convincing than the employer’s. And, that’s what counts the most legally – whether in court or at any time during the settlement negotiations.