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Why a Layoff Is Not an Alternative to Terminations for Cause

Why a Layoff Is Not an Alternative to Terminations for Cause

​One of the biggest mistaken assumptions in the workplace is that companies can simply lay off their weakest performers rather than proceed with progressive discipline. In almost all cases, progressive discipline is the method of choice when dealing with substandard performance or conduct issues. To simply make the person and problem magically disappear via a no-fault layoff may feel like the path of least resistance, but it often leaves managers unaccountable, workers neglected and the organization vulnerable.Here’s what you need to know so you can avoid this potentially dangerous landmine:The Path of Least ResistanceManagers who want to avoid the confrontation associated with progressive discipline and termination often look to a no-fault layoff because it appears to provide a quicker, cleaner solution to ending employment. No confrontation, no disagreement and no conflict necessary: simply a “position elimination” removing the poor-performing employee from the workplace, coupled with a severance package and a promise not to contest the individual’s application for unemployment insurance.But there are certain legal and practical guidelines you need to follow when considering a layoff. Specifically, you should determine the appropriate employee to be laid off, how long you’ll have to wait before refilling that position and what could happen if you are legally challenged for having improperly laid someone off.Keep in mind that you eliminate positions, not people. There’s typically a budget shortfall that needs to be addressed by eliminating a position or a redundancy in work processes that triggers the need to eliminate a role. In other words, your written records must reflect that a position is being eliminated because of a legitimate business need, and the individual who currently fills that position will now be affected because there’s no longer a job to report to.”If removing a problem performer is your goal, then eliminating that individual’s job may be a big mistake,” according to Jeff Nowak, management-side employment attorney at Littler Mendelson P.C. in Chicago. “After all, you’ll still need to get the work done.”Even if you already have a specific employee in mind, determining which employee should be separated once you’ve established a legitimate business reason to eliminate a position can be challenging.”Remember, you can’t arbitrarily select someone for a layoff simply because he is your weakest performer or because he happens to be sitting in the seat that’s being eliminated,” Nowak said. “Instead, you must first identify the least-qualified person in the department or unit to assume the remaining duties after the restructuring occurs. The least-qualified person on paper, however, may end up being your best (albeit newest) performer.”Let’s look at an example to clarify these concepts. Assume you’re looking to terminate a poor-performing employee by eliminating one of three administrative assistant positions in your marketing department. Since there are three individuals who currently fill that role, you have a pool to choose from and your company will be required to conduct a “peer group analysis” to see which of the three is the least qualified to assume the remaining job responsibilities once the position …