[COLUMN] Can employer fireplace staff in a post-COVID ‘reorganization’? —

Q: I work for a medium-sized company in Los Angeles. Because of the COVID pandemic, half of our workforce and I worked from home for over a year. Now we are going back to the construction site. However, management has told us that there will be a “reorganization” and that some employees will not come back and be laid off. I was one of those people who was told not to come back. After talking to other colleagues, the company appears to be laying off workers with the highest salaries (most of them older) and workers with illness. I am an older worker and had been on sick leave months before the lockdown for heart surgery. What are my rights?

A: In California, employment is generally ad libitum. This means that both the employer and the employee can terminate the employment relationship at any time. An employee can terminate his or her job at any time without giving a reason. The employer can also terminate the employee at any time, even if the employee’s work was excellent. The employer can also dismiss employees for unfair reasons such as nepotism or favoritism. Or the employer can terminate employees for business reasons, for example through reorganization or job cuts. The employer can even terminate the employee without giving a reason.

However, the employer is prohibited from dismissing an employee on grounds of discrimination or retaliation. Discriminatory intent exists when an employee has been terminated based on protected characteristics such as age, race, gender, skin color, national origin, disability, health status, pregnancy, religion and even union membership. Retaliation is intended if the employer dismisses the employee because he is performing a “protected activity”, for example filing internal complaints about the safety of the employer’s products or asserting a legal claim, such as sick leave. If discrimination or retaliation is proven, the employee may be entitled to unlawful dismissal.

Since employees return to work after the order to stay at home is lifted and after a long absence from work, employers can reassess their personnel requirements after COVID. It may be true that as a business necessity they are streamlining and cutting redundant or more expensive jobs.

However, whether or not COVID, employers must continue to comply with existing laws regarding old age and disability under the California Fair Employment and Housing Act (FEHA) and the Americans with Disabilities Act (ADA). The guidelines and conduct of an employer must not lead to different effects or different treatments for employees.

Different effects are often referred to as unintentional discrimination. Employer policies, practices, or decisions may appear neutral, but they will result in a disproportionate impact on a protected group. In the above research, the employer’s stated intention to eliminate higher paid workers may sound neutral at first glance and may be justified as a business decision. However, if it leads to a disproportionate number of workers over 40 being laid off in order to be replaced by cheaper but also younger workers, the supposedly neutral entrepreneurial decision can actually be age discrimination.

On the other hand, different treatment is willful discrimination. This means that the employer has deliberately singled out a protected class of workers and subjected them to adverse measures. In the above investigation, the employer’s behavior in dismissing workers who have or have taken an illness can be viewed as discrimination on the basis of disability or medical condition.

While employers are resuming normal operations, both existing and newly enacted worker protection laws will apply. For example, in certain industries, laid-off workers have the right to be recalled to their previous job or to any vacancy for which they could be trained. When employers ask some workers not to return to work but to hire new ones, one has to wonder whether the employer is being discriminated against. It would certainly be an advantage for an employee in this situation to consult an experienced employment advisor in order to protect themselves.

* * *

C. Joe Sayas, Jr.’s law firm welcomes inquiries regarding this matter. All inquiries are confidential and free of charge. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com. [For more than 25 years, C. Joe Sayas, Jr., Esq. has successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is a past Presidential Awardee for Outstanding Filipino Overseas.]

(Advertising insert)