Business

Can employer fire employees in a post-Covid ‘reorganization’?

Questions: I work for a medium sized business in Los Angeles. Because of the COVID pandemic, I worked with half of our workforce from home for over a year. Now we return to the workplace. However, management has told us that there will be a “reorganization” and some employees will not be asked to come back and will be released. I was one of those people who was told not to come back. After talking to other colleagues, it appears that the company fired workers who have the highest wages (most of them older) and workers who have had some medical condition. I am an older worker and I had taken medical leave months prior to the lockdown for a heart operation. What are my rights?

Answer: In California, employment is generally “of your choice.” This means that either the employer or the employee can terminate the employment relationship at any time. An employee can terminate his job at any time. Similarly, the employer can terminate the employee at any time, even if the employee’s job performance was excellent. The employer may also dismiss employees for unreasonable reasons such as nepotism or favoritism. Or the employer may dismiss employees for business reasons, such as reorganizing or eliminating job vacancies. The employer can even dismiss the employee for no reason.

However, an employer is prohibited from dismissing an employee for a discriminatory or retaliatory reason. Discriminatory intentions exist when an employee was fired because of their protected characteristics such as age, race, gender, color, national origin, disability, medical condition, pregnancy, religion, and even union. There is a reciprocal intent if the employer fires the employee for participating in a “protected activity” such as registering internal complaints regarding the safety of the employer’s products or for exercising a legal right, such as taking a doctor’s leave. Where discrimination or retaliation can be proven, the employee may be entitled to wrongful termination.

As employees return to work after the cancellation of the home order stay and after a long absence at the workplace, employers can legitimately reassess their staffing needs under COVID. It may be true that they streamline and remove redundant or more expensive positions as a business necessity.

However, COVID or not, employers must continue to comply with applicable age and disability laws under the California Fair Employment and Housing Act (FEHA) and the Americans with Disabilities Act (ADA). An employer’s policy and behavior must not result in different influences or different treatment of employees.

Different influences are often called unintentional discrimination. Employer policies, practices or decisions may appear to be neutral but have a disproportionate impact on a protected group. In the above query, the employer’s stated intention to eliminate higher paid employees may sound neutral in the face and may be justified as a business decision. However, if it results in the dismissal of a disproportionate number of employees older than 40 years to be replaced by cheaper but also younger employees, the allegedly neutral business decision may in fact be age discrimination.

On the other hand, different treatment is intentional discrimination. This means that the employer has deliberately designated a protected class of employees and exposed them to negative action. In the above query, the employer’s conduct with the dismissal of employees who have a medical condition or who took medical leave can be considered as disability or discrimination of medical condition.

As employers resume normal operations, existing laws exist as well as recently enacted ones to protect workers. For example, redundancies in certain industries have the legal right to be recalled to their previous job or to any open position for which they could be trained. Where employers ask some employees not to return to work but instead hire new ones, one must ask whether the employer is involved in discrimination. It would certainly benefit an employee in this situation to consult an experienced hiring counselor to protect themselves.

The law firms of C. Joe Sayas, Jr., welcome inquiries on this subject. 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.]

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