Hiring while Laying Off
Employers should pay heed to potential age-discrimination claims when recruiting new employees while laying off others. This month's column also looks at employee-leave requests under the Family and Medical Leave Act.
By Keisha-Ann G. Gray
I am excited about contributing to the Legal Clinic and hope to assist you, as Tracey Levy* has, in navigating the tricky employment-law issues that employers currently face.
I have litigated numerous employment-discrimination cases and tried employment actions to successful verdicts. I believe that my perspective as a trial attorney as well as my experience as a former federal law clerk and former Civil Assistant U.S. Attorney will prove helpful in addressing today's challenging employment law issues.
For my first column, I have chosen two common problem topics: age considerations in enacting layoffs and FMLA-leave issues.
Question: Can an employer hire new employees while old employees are laid off?
Answer: There is nothing inherently illegal about laying off current employees while hiring new ones. In general, however, employers should be wary of hiring new employees during or shortly after conducting layoffs. As one court has stated, "by definition, when the employer reduces his work force he hires no one to replace the one he lets go."
Assuming your question refers to laying off older employees, significant litigation risk exists under the federal Age Discrimination in Employment Act when employers fire older employees only to replace them with new, younger ones.
When evaluating ADEA claims, courts routinely consider whether a significant age differential exists between the person fired and the replacement hired. Therefore, if your company intends to lay off old employees and, at the same time hire new ones who happen to be generally younger, it should make sure that it can articulate clearly objective, non-age-related business purposes for making these lay off and hiring decisions.
That said, the ADEA recognizes an exception that permits employers to discharge older employees on account of age when "age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business." 29 U.S.C. § 623(f)(1), Western Air Lines, Inc. vs. Criswell, 472 U.S. 400 (1985). However, courts narrowly apply this bona fide occupational qualification exception in unique and rare circumstances, and employers bear the burden of burden of proof to show that an age limit is reasonably necessary to the essence of the business, as well as the safe and efficient performance of the job.
Because employers can seldom meet this burden, the exception should not be relied upon without first consulting with an experienced employment attorney.
Question: An employee's mother has a significant medical condition and the employee wants to take a week off to care for her. This sounds like a solid basis to describe this as a Family and Medical Leave Act leave. However, the employee has four weeks of paid leave and wants to take a week's vacation. Shouldn't the week's vacation she takes count towards her FMLA leave? Would it be appropriate to give the employee the medical certification form for her mother's physician to complete if she wants to take her paid leave?
Answer: The FMLA requires employers with 50 or more employees to provide up to 12 weeks of unpaid leave for certain family and/or medical reasons including care of a parent with a serious health condition. See 29 C.F.R. § 825.112.
Employee-leave requests that correlate to FMLA-covered reasons should be designated by the employer as FMLA leave regardless of whether the employee specifically states that the leave is for FMLA purposes. The fact that the employee may prefer to characterize leave as vacation as opposed to FMLA leave is immaterial. Failure to designate leave appropriately may result in the employee gaining more FMLA leave than she is entitled to receive.
The FMLA does not require employers to offer paid FMLA leave. If an employer's company policy offers paid time off, such as paid vacation, the employee may elect or the employer may insist that the employee take paid vacation time to attend to matters covered by the FMLA before using her 12 weeks of guaranteed unpaid FMLA leave time.
Whether or not an employee is required to substitute accrued paid vacation leave for unpaid FMLA leave is determined by the employer's specific company policy. See 29 C.F.R. § 825.207. Therefore, you should consult with your company's policy to determine whether this employee is required to, or may elect to, utilize accrued vacation in conjunction with her FMLA leave.
The FMLA does not require that employees submit medical certifications when requesting FMLA leave. Employers may, however, require that employees submit medical certifications to verify whether or not the leave requested is FMLA qualifying. See 29 C.F.R. §§ 825.305, 825.310.
To submit a question to the Legal Clinic
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* Editor's Note: Tracey Levy has left Proskauer Rose for an in-house counsel position. Additional biographical information on Keisha-Ann Gray is
here
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April 21, 2008 Copyright 2008© LRP Publications
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