Layoffs are devastating and, sadly, increasingly common in corporate America.
Just last week, Target and UPS announced they’re cutting thousands of positions. Amazon announced plans to lay off 14,000 corporate workers, with additional cuts to 16,000 more employees reportedly in the pipeline. Paramount also announced plans to eliminate various positions, including at CBS, CBS News, MTV, BET, and Comedy Central.
Across the tech sector, more than 22,000 people have been affected by staff reductions this year, according to TechCrunch’s tally.
That said, illegal layoffs and wrongful termination extend well beyond corporate behemoths. Across the board, employers are subject to federal and state rules and regulations governing the workplace.
With more than four decades protecting employees, our attorneys are attuned and sensitive to the issues facing the terminated employee: the loss of a paycheck and benefits, feelings of insecurity, and, oftentimes, the loss of identity. In every industry sector, thousands of employees have turned to us to navigate high-stakes employment issues, including layoffs and wrongful termination claims.
What are some of the key questions and considerations in the face of a job loss?
- Can my employer really do this?
Most likely, yes. In nearly every state, employment is “at will.” This means that both you and your employer are free to terminate your employment at any time, for any reason.
There are exceptions. Generally, an employer may not terminate you for reasons that relate to (a) discrimination based on a protected characteristic, (b) retaliation for engaging in protected activity, or (c) a violation of a contract or agreement.
These laws are nuanced, and individual rights depend on individual situations. A lawyer can help you understand whether a layoff crossed a legal line, and any available remedies.
- Am I entitled to severance pay?
In most circumstances, an employer is not required to pay severance unless it has a policy that provides otherwise. There also may be a contract that requires it to do so, such as an executive compensation agreement that applies to certain high-level employees or a collective bargaining agreement negotiated by a union.
An employer may offer severance even when it isn’t required to do so. The employer is free to structure the package any way it wishes, from a simple tenure-based cash payment to a complex web of accelerated stock vesting, extended health benefits, and pro-rated bonuses.
- Can I negotiate for more severance?
It depends. If you have potential legal claims—such as discrimination, retaliation, or violations of leave protections—the company may be more willing to offer additional compensation in exchange for a release of those claims. The company’s financial stability is also a consideration.
Your employer might ask you to sign a severance agreement. This is complex terrain, and you may wish to consult with an attorney before signing. Such an agreement may waive your legal rights and include other provisions that are squarely in the employer’s interest, such as non-disparagement, cooperation, or confidentiality provisions. You should be particularly mindful of restrictive covenants that impact your ability to find another job.
- What if my termination was retaliatory or related to discrimination?
Employers have the freedom to reduce their workforce, but that right has limitations. For instance, it is illegal to discriminate against an employee based on protected characteristics such as race, gender, age, national origin, sexual orientation, disability, or pregnancy. Employers often defend terminations with vague or shifting reasons. But patterns in employee layoffs can signal discrimination.
We’ve seen employers lay off large numbers of women, people of color, employees who recently requested disability accommodations, and those who have recently grown their families. If certain groups of employees are hit harder than others, the process may not be fair. And it may not be legal.
With respect to retaliation, employers may not punish employees who engage in protected activity. This activity can include reporting illegal conduct to human resources or management, as well as reporting illegal conduct to the authorities. Importantly, an employer can never bar an employee from communicating with the government—even if an employment or severance agreement includes such language.
The law is also nuanced in this arena, and employers may legally lay off employees even when protected traits and activities are involved. Understanding your rights depends on the specific facts of your situation.
- Can my employer fire me while I’m on FMLA leave?
You have rights. Laws like the Family and Medical Leave Act (FMLA) protect your job when you need time off to care for family, including parental leave, as well as leave for pregnancy, military service, or as a reasonable accommodation for a disability. Many states and localities provide rights and protections that go even further. But these protections are not absolute and there are exceptions.
Fundamentally, employers may not retaliate against you for taking FMLA leave or other protected leave. If you’re let go soon after requesting, returning from, or during your leave, that could be a red flag and may or may not be illegal. Again, this is a complicated area of law and exceptions depend on the specific facts of your situation.
- What are my options for unemployment benefits?
You can apply for unemployment benefits after a layoff, but timing matters. Each state has its own processes and deadlines, which are overseen by its labor department.
- What happens to my health insurance?
Losing your job doesn’t mean you immediately lose health insurance. Your employer may offer extended benefits in a severance agreement, or you may be able to continue coverage for up to 18 months through a federal law called the Consolidated Omnibus Budget Reconciliation Act (COBRA), which allows employees to continue their group health insurance after leaving a job.
Most states have their own health coverage continuation laws. The laws typically apply to smaller employers not covered by federal COBRA and can sometimes offer longer coverage periods.
You may also investigate a health insurance plan through the Affordable Care Act (ACA) marketplace, which is open to all individuals.
No matter how your proceed, time is of the essence. Don’t wait to review your options.
Navigating the Road Ahead
Losing a job—for anyone—is extremely stressful. Beyond the financial implications, it can feel like losing your footing, identity, and purpose.
You don’t have to navigate this alone. If you need guidance with respect to various protections and benefits, please call our client intake team at (877) 468-8836. We’re available to speak to you Monday to Friday, 8:30am to 9pm, eastern time.
