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California Employment Law
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I was notified on November 9 that I will be terminated by my

company of 20K+ employees on...
I was notified on November 9 that I will be terminated by my company of 20K+ employees on January 15, 2012 with the reason "workforce reduction," along with over 200 other employees in the company. I have been employed there since 1985, non-union, management position. My entire department of 14 people was part of the 'reduction' with the single exception of a 33year old woman with less than two years of service and the existing four contractors were also left in their positions. This means that 9 out of the 10 employees on the team were let go. Ages range from 40 to 63 and years of service from 3months to over 30years. I was notified yesterday that my position is currently being circulated through contract agencies to hire contractors into the positions created by the 9 employees leaving. Is this legal?
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Answered in 14 minutes by:
12/1/2011
Patrick, Esq.
Category: California Employment Law
Satisfied Customers: 13,396
Experience: Significant experience in all areas of employment law.
Verified
Hello and thank you for entrusting me to answer your question. I am so sorry to hear that this has happened to you and many of your co-workers. Unfortunately, what I have to tell you is not going to be good news. Nonetheless, I hope that you will appreciate an accurate legal answer.

I'm going to assume that you do not have a contract that guarantees you employment for a specified period of time (i.e. "a 3 year contract with X Corp") Assuming that no such contract exists, California regards XXXXX XXXXX as "at will." More specifically, California Labor Code Section 2922 provides that "employment, having no specified term, may be terminated at the will of either party on notice to the other."

This law creates the unfortunate circumstance where an employee with years of loyal and quality service can be terminated for no reason by his or her employer, provided the reason is not discriminatory or otherwise in violation of California law (for example, being fired in retaliation for whistleblowing).

Now, you mention the age of the sole employee who was not let go. She is substantially younger than yourself and the other employees who were laid off. California law prohibits discrimination on the basis of age (40 years and older). (See Govt. Code 12921.) However, you would have to prove not simply that you were let go in favor of someone younger but that age was a MOTIVATING factor. This can be proved by statements from an employer so indicating, or much more commonly, through inferences arising from corporate culture (i.e. a culture of favoring younger workers), or comments that denigrate older workers. The California Supreme Court has recently held in Reid v. Google, Inc. (2007) 155 Cal.App.4th 1342 that a claim can be substantiated on the basis of statements from co-workers or employees not in hiring/positions within the company.

However, age discrimination claims are extremely difficult to prove, and the discrimination usually needs to be quite clear. I'm not so sure that would be the case on the facts that you describe. If you are interested in bringing a claim for age discrimination, you can do so either through California's DFEH or the federal EEOC. For information on how to bring a claim through California's DFEH, visit this link: http://www.dfeh.ca.gov/Complaints.htm For information on how to brig a claim through the EEOC, visit this link: http://www.eeoc.gov/employees/charge.cfm

Finally, under the federal WARN Act, an employer with at least 100 employees that lays off at least 50 during a 30-day period must either give 60 days notice of the lay off or pay 60 days wages. It would seem that your employer must comply with this law.

I understand that you may be disappointed by the answer I've given you, as it's not particularly favorable to your situation.  Had I been able to provide a more favorable answer, it would have been my pleasure to do so.

I sincerely XXXXX XXXXX this information helps you and I wish you the very best of luck. Bear in mind that non of the above constitutes legal advice nor is any attorney client relationship created between us.

Please abide by the honor code of this website by kindly clicking on the GREEN ACCEPT button if my answer has been helpful to you. Thank you very much.

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Customer reply replied 6 years ago
can the company immediately turn around and hire contractors into these positions? if so, what would be acceptable justification for the "workforce reduction" reason provided to those of us who were terminated? And in order to receive a severance package, why does the HR paperwork I am required to sign indicate that I am "resigning"? I was given paperwork to take to the unemployment office next year that says I was part of a workforce reduction. Aren't the two documents in conflict with each other?
"Can the company immediately turn around and hire contractors into these positions?"

Since you are not part of a union with a collective bargaining unit, yes it can, unfortunately. No justification is required to do this because when employment is "at will," an employer can terminate employees for any reason it sees fit unless the reason is discriminatory or otherwise in violation of CA law.

"In order to receive a severance package, why does the HR paperwork I am required to sign indicate that I am "resigning"? I was given paperwork to take to the unemployment office next year that says I was part of a workforce reduction. Aren't the two documents in conflict with each other?"

They are probably giving you paper work indicating that you "resigned" as a professional courtesy to aid you in your job search. It's favorable to tell prospective employers that you resigned rather than that you were involuntarily terminated.

The paperwork indicating you were part of a workforce reduction is to make your application for unemployment benefits a smooth process. If you ACTUALLY "resigned" (which you didn't), you wouldn't be eligible for UE benefits because such benefits are typically only available to employees who are unemployed "through no fault of their own." Since a resignation implies voluntary unemployment, an employee who TRULY resigned would likely be ineligible for benefits.

In short,the document indicating that you resigned was likely given to you as professional courtesy. The document indicating you were part of a reduction in force was given to you to assist you in obtaining UE benefits, as you are entitled.

I hope that this helps. Please kindly remember to "Accept" my answer. Thank you very much and best regards.
Patrick, Esq.
Category: California Employment Law
Satisfied Customers: 13,396
Experience: Significant experience in all areas of employment law.
Verified
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