It’s never easy, but Oprah delivers layoff news in person

March 09, 2015 - by: Marilyn Moran 7 COMMENTS
Marilyn Moran

Last week, entertainment powerhouse and former talk-show host Oprah Winfrey announced that Harpo Studios in Chicago will be closing its doors by the end of the year, resulting in the loss of nearly 200 jobs. In typical Oprah fashion, she delivered the bad news to her employees in person, probably ambling around the room, microphone-in-hand, and breaking into her famous “ugly cry” for good measure. Handling employee layoffs are never easy, even if you’re Oprah, but here are three steps to follow if your business ever needs to downsize:

Harpo Studios, Chicago

1. Develop a Plan.

A reduction in force can open up a Pandora’s Box of potential liability if not handled appropriately, so before you start handing out pink slips, you’ve got to have a plan in place. To navigate the murky waters of employee layoffs, companies should obtain experienced employment law counsel to draw up severance agreements, review layoff criteria for potential disparate impact, and ensure compliance with the myriad of laws implicated by employee terminations. One such law, the Older Workers Benefit Protection Act (OWBPA), requires an employer to make specific disclosures to an employee over 40 years of age and to provide the employee with additional time to review, and revoke, an agreement to waive federal age discrimination claims. Many states impose additional requirements, above and beyond OWBPA’s protections, and there are a multitude of other state laws that govern issues such as when an employee must receive his or her last paycheck and whether the employee must be paid for accrued but unused vacation time.

Of course, the first question you will need to answer when planning a reduction in force is what criteria you will use to determine who will be selected for layoff. Across-the-board reductions based on lack of seniority, while easy to administer, usually are not the most effective business solution. Instead, in a large workforce comprised of different departments and job functions, layoffs should generally be based on employees’ particular skill sets, with an eye toward maintaining those departmental functions that will improve the organization’s overall efficiency.  For example, if Oprah wants to focus her business operations on hard medicine rather than psychological counseling, it makes sense for her to retain Dr. Oz over Dr. Phil, even though Dr. Phil’s been around longer. Whatever the criteria used, it is crucial for the company to articulate clearly its reasons for selecting a particular employee, or group of employees, for layoff and be able to explain how the layoffs served the company’s legitimate business needs.

2. Comply with the WARN Act.

For large lay-offs, companies also will need to comply with the Worker Adjustment and Retraining Notification Act (WARN Act).  The WARN Act requires covered employers to provide employees 60 calendar days’ advance written notice of a plant closing or mass layoff. To be covered under the WARN Act, an employer must have either (a) at least 100 employees, excluding part-time employees, or (b) 100 or more employees who, in the aggregate, work at least 4,000 hours per week. The employer also must provide notice to the state and the chief elected official of the local government where the layoff or plant closing will occur. In addition to the federal WARN Act, many states have so-called “mini-WARN” statutes that employers must follow during a reduction in workforce. WARN laws are complicated because they contain many eligibility and notice requirements that differ across jurisdictions. As a result, it bears repeating that companies should seek the assistance of experienced employment law counsel before downsizing their operations to ensure they are in compliance with all applicable laws.

3. Treat Your Employees with Dignity and Respect.

Perhaps the most important tip for handling employee layoffs is also the simplest: Treat your employees with dignity and respect throughout the termination process. While you may not be able to dole out cars to your departing employees or surprise them with a giant check like Oprah, providing employees with open communication, sufficient notice, and emotional support will go a long way toward helping them through a difficult situation. Besides, nothing will kill the morale and loyalty of a remaining employee more quickly than cramming his buddy’s cubicle contents into a banker’s box and subjecting him to a humiliating walk-of-shame to the nearest exit.

Hopefully, employee layoffs are not in your company’s future, but if and when that time comes, you will be ready as long as you develop a plan with the assistance of experienced counsel, follow the law, and treat your employees with the dignity and respect they deserve. As Oprah would say, that’s what I know for sure.

Ready for kickoff

September 03, 2014 - by: Matt Gilley 0 COMMENTS
Matt Gilley

I live in the South. This time of year, that means college football; that also means otherwise healthy friendships will erupt with enough recrimination, envy, taunts, and ill will to put the Corleones and Tattaglias to shame. Everyone crows that this is their year , we’re going to come out on top, and what-do-you-mean-that-overtime-loss-last-month-means-we-can’t-play-for-the-championship? shutterstock_165900731(Except folks like me, a Wake Forest alum, who find comfort in high-minded humility, of course.)

College football has never really found a satisfying way to crown its champion. It used to be that sportswriters picked it; then the coaches started their own poll and jumped in the mix. They tried a championship game, and then the number crunchers came out with the BCS, a computerized system that seemed to factor in everything (unless it was important, and then it was left out).  Then Colorado walloped Nebraska–and Nebraska advanced to the championship game. .

Now the college football dons have shifted course again. We finally get a “playoff” among four teams chosen by a “selection committee” meant to take the edge off the BCS’s cold math and reintroduce a bit of the eye test back into crowning a champ. Semifinal games will rotate among the “Classic Bowls”–the Rose, Sugar, Orange, Cotton, Fiesta, and Peach (for any of you who shivered through 1980s-era Peach Bowls in old County Stadium in Atlanta, the “Classic” designation is probably worth a chuckle). The semifinal winners will advance to the championship.

Problem solved. Right?

Probably not. That fifth team surely won’t be happy. You can count on demands to expand the playoff in coming years. Why? One reason I expect controversy is the selection committee is going to be using the eye test to pick its contestants. For sure, they will look at objective factors like strength of schedule, overall record, and such, but when you get down to the difference between the fourth and fifth teams, subjective factors are going to have to enter into the equation.

The same is true for human resources professionals. As much as employers try to rely on the most objective hiring metrics they can, the subjective factors cannot be discounted. Will this person be “a fit”? If we have to reduce staff, who has the more flexible skills to take on added responsibilities in different areas?

You will eventually find yourself in a situation like the college football selection committee, having to explain the objective and subjective factors behind who was in and who was out. Subjective factors are by no means out of bounds. They often, however, are the factors that find their way into the center of employment claims. Documenting performance expectations, giving long and serious consideration, and developing a clear job-related rationale for choosing certain employees or prospects over others are critical to showing a legitimate, nondiscriminatory reason for your actions.

Workin’ it in the library

July 25, 2013 - by: Jaclyn West 0 COMMENTS
Jaclyn West

It’s summertime, and the reading is easy. (For many, that is. There are some who like to take advantage of long beach days with a tome they otherwise wouldn’t have time to read; to them, we say more power to you!) As a bookworm, I’m always looking for a good read to take with me, whether that’s to the beach or otherwise—although I do prefer the beach. And as a proud employment law geek, I love it when my pleasure reading gives a nod to my chosen profession. So if you, too, like your summer reading to dish out a generous portion of human resources (I can’t be the only one, now, can I?), here are some of my personal favorites.

Fiction
Then We Came to the End: A Novel by Joshua FerrisThen We Came to the End was described to me as “Office Space in book form,” and I have to say, that description is apt. The book chronicles a group of employees in a Chicago advertising firm facing deep staffing cuts. It’s narrated in the first-person plural, which is an interesting, little-used perspective, and as a result, it honestly captures the group dynamics of many offices. This dark comedy manages to be simultaneously sad and funny . . . and anyone who has ever looked with an envious eye at a coworker’s office furniture will blush with recognition.

Baker Towers: A Novel by Jennifer Haigh—Employment isn’t the primary focus of Baker Towers, but in a novel sweeping decades of life in a Pennsylvania coal mining town after World War II, you know that labor strife will be part of the picture. When the miners go on strike, the entire town feels the effects—even those who don’t work below ground. Baker Towers is a sensitive, realistic portrayal of life in the Rust Belt, and those of us with a labor bent will find it fascinating.

Nonfiction
The Good Girls Revolt: How the Women of Newsweek Sued Their Bosses and Changed the Workplace by Lynn Povich—If you like your beach reading with a side of subversiveness, The Good Girls Revolt is for you. Lynn Povich was a staffer at Newsweek in the 1970s, when the journalism industry was male-dominated. Povich and her female colleagues filed an EEOC charge alleging “systematic discrimination” by the higher-ups at Newsweek, and this is their story. It’s light on legal arguments but heavy on atmosphere, and you’ll feel as if you were there, sitting with the Newsweek women in tension-filled meetings in apartments, planning their next move.

Quiet: The Power of Introverts in a World That Can’t Stop Talking by Susan Cain—According to Quiet, at least one-third of people are introverts, which means there are almost certainly some in your workforce, if you’re not one yourself. Many introverts struggle to fit into an extrovert-dominated workforce, but Susan Cain has good advice on that score. As an introvert myself, I nodded in agreement with many of her tips and anecdotes—but this book isn’t just for introverts. Quiet should be required reading for managers who want to learn more about how their more introverted employees think and work best. Quiet was one of the most talked-about books of 2012, and for good reason. It’s well-researched and absolutely fascinating.

Enough about me—what about you? Are you reading anything employment-related this summer? Do share!

Editor’s note: Blogger Jaclyn West has not been compensated for her book recommendations.