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Layoff seems to target certain type of employee. But may not qualify as discrimination. Might there be a case?

Los Angeles, CA |

Big utility company's IT dept is downsizing by 20% (about 300 people) and outsourcing these jobs. I am one of 3 people in my group who were laid off. I am 60 years old, the other 2 are in their 50's. I have worked at company for two years. We 3 are sometimes more "outspoken" in that we identify task-related problems and get things done. We are active, while others are lazy, and I feel we were singled out because we challenged the lazy atmosphere mgmt has enjoyed, or mid-mgmt were trying to protect their positions.

I was told my position was being eliminated, but a coworker told me they actually replaced me with a person from another dept.

Smells fishy. Appears my position wasn't actually downsized.
Wondering if there could be a possible wrongful termination case here.

Attorney Answers 4

Posted

To best determine that it is necessary to know the characteristics of the individual that replaced you. For example, if they replaced you with someone much younger than you it could be age discrimination. Do you have that information?

My answering this question does not form an attorney-client relationship. Always retain a qualified attorney before taking any action. My office offers free consultations. www.jrandolphlaw.com

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Asker

Posted

I do not have that information yet. I will contact coworker friend to find out. What do you consider much younger? 40-something? So I take it that terminating a high performance employee in the guise of a downsizing because you don't like how the employee makes you look like a lazy or incompetent manager, and because you need to protect your job..... is an ok tactic? I can fire someone for whatever personal reason, and disguise it as a downsizing?

Christine C McCall

Christine C McCall

Posted

At will employees can be fired for personal reasons without the need for any effort at pretense or disguise. Personal reasons -- dislike, personality clash, etc. -- are lawful bases for adverse employment action. At will employment can be very unfair and truly brutal.

Justin G. Randolph

Justin G. Randolph

Posted

I agree with Attorney McCall. You can be fired for any reason except a discriminatory one. Being replaced by someone 20 years younger may be good evidence.

Panda Lynn Kroll

Panda Lynn Kroll

Posted

I also agree with attorney McCall that many unfair practices are not illegal. I often suggest that market forces will perhaps cause better managed companies to succeed and toxic companies will fail. Thus, apply for work with the competition but be circumspect about blaming your former employer for your inability to "fit" with an unproductive environment. Good luck.

Posted

It is unlawful to discriminate against a person because of his or her age (over 40) and other protected classes: age, race, gender, religion, medical condition, pregnancy, etc., but it is not unlaw ful to discriminate against a person or persons BECAUSE they are "outspoken" about tasks, etc., unless they are being "outspoken" about a violation of their legal rights (example: overtime, etc.)

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Posted

A layoff cannot be used as a pretext for age discrimination. These cases are tough because the employer claims that the employee was laid off, and companies are allowed to lay off employees. If you can show that there really was not a layoff -- another employee took your same job duties, that goes a long ways towards proving pretext -- that the company's reason for the termination is false. If you have enough evidence that the layoff is pretextual, you may be able to convince (first the judge) and then a jury that the real reason for the termination was age discrimination.

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Posted

Thanks. Pretext issue is interesting. This big utility company is known for its lazy atmosphere, and there's a lot of anecdotal evidence on glassdoor dotcom. Many people here are old, don't get work done, and are there just for the retirement benefits. Common sense would tell me that the company finally realized these people were costly to keep. The CIO actually asked the older folks to voluntarily retire and take their benefits, but they didn't get enough volunteers, so they forced layoffs. I have confirmed that the remaining people in my group are doing overtime to compensate for my absence. I was laid off in the middle of an ongoing project. 2 other people were transferred from another dept, but I have yet to determine what their duties are.

Posted

It is illegal in California to get rid of older workers because they are older, or because they make more money as a group. Employers cannot use a reduction in force as an excuse to rid itself of older workers.

The challenge is in the proof. The employer can't simply rely on a lay off; it must explain why it chose the people it did. If it can articulate a legitimate, nondiscriminatory reason for its decision, the burden then shifts to you to prove that its reason is pretextual. That is usually done by showing that the reasons they put forward are not true.

It is also illegal to lay off that many workers without giving 60 days notice. I assume they gave you proper notice, but if they did not, they may be a violation of Cal-WARN.

It is not illegal to lay you off for "identify[ing] task related problems, or for "challeng[ing] the lazy atmosphere." Those would be illegal, although they would also be bad decisions.

I hope this information is helpful to you.

Sincerely,
Craig T. Byrnes
www.ctblawfirm.com
310-706-4177

Disclaimer: Please be aware that I am not offering legal advice, nor forming an attorney-client relationship with you. I am not representing you, nor doing anything to protect your legal rights. If you believe that you have suffered a legal wrong, take action before any statute or limitations expires, or your right to do so may be lost forever. Good luck in your legal matter.

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Posted

Thanks. "The employer can't simply rely on a lay off; it must explain why it chose the people it did" I suppose it is easy for any company to say that these layoffs result in cost savings, if that is a sufficient explanation. As I mention in another comment, many employees in this company are in their 60's, and the CIO asked for volunteers for retirement, but did not get enough. General consensus is that work is easy and laid back, and these older folks remain for the good retirement benefits. After this first round of layoffs, it appears only a few 60+'s remain, perhaps as a facade to show that they are not discriminating by age. A sizable number of people in their 50's were also laid off. I presume others were laid off because their projects were actually canceled. But in my case, I was laid of in the middle of an ongoing project, and the remaining workers in my group were asked to do overtime to help take over my work.

Craig Trent Byrnes

Craig Trent Byrnes

Posted

Saving money is a legitimate reason, but in California it can't be used as a proxy for age discrimination.

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