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The El Paso Times has reported that the CEO of an El Paso public hospital was publicly challenged on apparent inconsistencies he made regarding a 2014 layoff of fifty-six employees – the same year the hospital paid bonuses to the CEO and a few other select personnel.

At the time of the layoff, the hospital sent letters to the employees informing them of their separation, and that the decision was budgetary, and unrelated to their performance.     It is unclear from the article how the hospital selected these employees for layoff, or if the hospital had any written policies governing how reductions in forces (RIFs) would be implemented, but one thing was clear: it had something to do with the data the company’s employee time tracking database showed.

Approximately one year later, the hospital is now projecting fiscal growth.  In response to the optimistic news, the same CEO was asked by El Paso County Commissioner’s Court if some of the laid off employees would be rehired.   Surprisingly, the CEO responded that “a good third of it (laid off employees) were on disciplinary measures that you don’t want back.”   Aside from receiving negative publicity for his comments, the CEO’s statement reflects an apparent change in the reasons for some of these layoffs, which could have legal ramifications.

Employment lawyers know that the easiest way for an employer to get rid of unwanted personnel is through a layoff or RIF.    Unlike a termination based on poor performance or discipline, a layoff does not require documentation of past performance or disciplinary problems, or that the employer followed its progressive disciplinary procedures.      Rather, an employer needs only to assert a desire to reduce the workforce due to financial reasons.

While there may be many valid reasons to implement a RIF, certain employees can become easy targets for layoffs, particularly older workers, injured or disabled workers, or employees who have made prior discrimination complaints.   While discriminatory motives are not as apparent in layoff cases, employers need to know that the misuse of RIFs to terminate workers for discriminatory reasons can be exposed.

Judges and juries alike know that employers rarely admit discrimination.   So in order to prove a discrimination case, the law allows workers to put on evidence that the employer’s reason for the termination was false, or a “pretext.”    In other words, if a worker is able to show that an employer lied about the reason for his or her termination, a jury is allowed (but not required) to come to the conclusion that the real reason for the termination was discriminatory.

So a word of caution to employers, credibility counts.  Dishonesty in terminations not only damages your credibility with your workforce, it can end up as a valuable piece of evidence in a discrimination case against you.

“If you tell the truth you don’t have to remember anything.”

— Mark Twain

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