Questions to Ask Before Making Personnel Decisions

The COVID-19 pandemic has created uncertainty for employers, forcing them to deal with realities of the ‘new normal,’ such as remote work or decreased revenue. On March 21, our firm created a blog post outlining the legal implications employers should consider before laying off employees. In order to best assess which legal issues or government programs may apply to an employer’s workforce decisions, employers can think through the following questions when making decisions about employee terminations, reduced hours, or furloughs.

Decision-making process:

1. Has the employer identified specific employees who may be impacted by a company decision related to terminations, layoffs, furloughs, or reduced schedules?
2. What is the business reason for making the decision, both broadly and employee specific?
3. When would a decision be made? When would it be implemented? Will the decision be rolled out in phases?
4. What are the short term implications of this decision on the employer’s business? What are the long term implications?
5. Would the decision trigger the requirements under the federal WARN and/or New York State WARN acts (potentially requiring 60 or 90 day advanced notice)?
6. What resources would the employer need to implement its decision?  For example, if an employer is terminating employees, does it have the tools and resources to draft and send termination letters and any applicable COBRA notices?
7. What would be the most cost effective option for the employer?
8. Would this decision expose the employer to liability? Can the employer mitigate against any potential liability?
9. What is the employer’s goal with respect to what it wants to do for its employees and what benefits it wants to provide to them?
10. Do any of the potentially affected employees qualify for the NYS Paid Family Leave? I.e. they are unable to work remotely, and are under a government order of quarantine or their children are out of school due to a government order of quarantine.
11. How will these decisions be communicated to employees?

Employee-specific characteristics:

1. Are the impacted employees in a protected class?
2. How old are the employees?
3. What work do they do?
4. Are they non-exempt or exempt employees? (salaried or hourly?)
5. Is an entire department or unit of employees being terminated? Furloughed? Hours and wages reduced?
6. What are the demographics and roles of employees not being impacted?

Consider all options:

1. Can the impacted employees continue to work, at least in part?
2. Can they work remotely?
3. Can they work a reduced schedule?
4. What would a reduced schedule look like?
5. E.g. would employees be off duty for entire months or weeks?  Certain days each week?
6. Is the employer looking to terminate employees instead?
7. Does the employer want to give employees options in the event employees decline to accept what's being offered to them? For example, reduction in hours and wages, or termination.

Benefits:

1. Would employees who work at a reduced schedule or are furloughed continue to qualify for employee benefits?
2. Would employees who are terminated receive severance and be asked to sign releases?
3. What benefits would employers want their employees to get that is available under one option vs. another option?

The answers to these questions impact what legal rights the employees have, what potential risks the employers are taking, and help streamline the decision process. Please contact us by phone at (212) 888-2680, through our website, with any questions or comments you have in this extraordinary time.