Best Ohio Employment Discrimination Attorney Answer: Can my employer lay me off because of the Coronavirus? Is my employer allowed to lay off older employees because of Covid-19? Are there steps my employer must take to lay off employees? Can my boss lay off Black or women employees first? Laid Off Because Of Coronavirus?
Unfortunately, our employment attorneys are once
again coming to you, our loyal readers, to discuss a less than happy topic. There
is no doubt about it. The Coronavirus (Covid-19) pandemic has had an incredible
impact on our daily lives. In fact, as our lawyers are
writing this blog, Ohio Governor Mike DeWine has issued a shelter
in place order or stay at
home order. Our regular readers know that Spitz, The Employee’s Law Firm has
been tracking the impact of Covid-19, and its impact on employment law for
quite some time now. (see More
Coronavirus (Covid-19) Tips For Employees, Coronavirus:
What Will Happen At Work?; Our
Handling Of The Coronavirus (Covid-19) Outbreak; Employment
Law: Legislative COVID-19 Response; Coronavirus
(Covid-19): Our Firm is Thinking of You and Your Families).
One topic we have not yet touched on is just what are an employee’s rights should they get laid off because of coronavirus?. There is a harsh reality whenever there is a global crisis that has an impact as wide-spreading as Covid-19’s has been. Businesses, in particular small businesses, will suffer. This is especially true for those who work in the foodservice industry. Thousands of our favorite waitresses, bartenders, and chefs found themselves unemployed when Governor DeWine, rightly, ordered that all Ohio restaurants cease serving dine-in customers. (For more about Covid-19’s impact on the foodservice industry, check out this story from Cantonrep.com.)
Of course, workers in the foodservice industry are not the only ones feeling the effects of getting laid off because of Coronavirus. According to this News 5 Cleveland story, the Ohio Department of Job and Family Services reported that 139,468 unemployment claims were filed from Sunday, March 15 through Thursday, March 19. That was exponentially higher than the 4,815 applications that were submitted during the same period the week before. Fortunately, Ohio has taken some steps to help those who find themselves suddenly unemployed due to Covid-19. For instance, Ohio has greatly expanded its criteria for who can apply for unemployment and made the process for applying for unemployment easier. All so that those who find themselves out of work have at least some help. For more information about applying for unemployment, as well as the answers to some frequently asked questions, go to the Ohio Department of Jobs and Family Services website by clicking here.
While some businesses are simply closing their doors in the hopes of waiting out the current pandemic, others are cutting back to what they consider to be essential staff and implementing policies that explain the process of being laid off because of coronavirus. These cutbacks often result in what we in the legal field call a Reduction in Force (“RIF”). A RIF takes place when a group of employees are temporarily or permanently laid off. While we understand that in times of hardship, it can be necessary for a business to reduce its workforce, there are still rules an employer must follow.
As many of you may know, Ohio is an at-will employment
state. This means that an Ohio employer may terminate its employees for almost
any reason at all or even no reason. However, an employer cannot terminate
employees for a discriminatory reason. If you are fired because of your race/color, religion, gender, national origin, disability, or pregnancy, then you likely have a claim for wrongful termination.
For instance, an employer may not hide behind a RIF to discriminate against employees based on those employee’s race/color, religion, gender, national origin, disability, or pregnancy if they have been laid off because of coronavirus. To do so would violate both Federal Law, under Title VII of the Civil Rights Act of 1964, and State Law under Ohio Revised Code § 4112.02. When you think about it, it seems fairly obvious. It is illegal for an employer to just let African American employees go in a RIF while keeping all white employees in the same position. Or, in a more timely example, terminating all employees who fall into the high risk of Covid-19 infection category due to their age or disability.
While all protected classes are protected from
discriminatory RIFs, one group that is particularly vulnerable to
discriminatory RIFs are older employees. As our employment law attorneys have
blogged about before, the Age
Discrimination in Employment Act (“ADEA”) as well as Ohio law (R.C. § 4112.02(N), R.C. § 4112.05,
and R.C. §
4112.14), make it unlawful for an employer to fail or refuse to hire or to
discharge any individual or otherwise discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment,
because such individual is over the age of 40. (See Can
I Sue For Age Discrimination? – Call The Right Attorney; Can
My Job Change Rules Against Older Workers?; I
Wasn’t Promoted Because I’m Older! – Call The Right Attorney, and Can
My Employer Change Company Policy To Force Out Older Employees? I Need The Top
Age Discrimination Attorney In Ohio!)
What makes RIF situations so complicated is that employers frequently have a legitimate business reason, also known as a good reason, for the layoffs. In most employment law cases, if the business has a good reason for terminating an employee, it can be very difficult (but not impossible) to prevail. This may also effect you if you have been laid off because of Coronavirus.
A RIF adds an additional element an employee needs to prove
to prevail in their case. Typically, to succeed in an age discrimination an
employee needs to be able to show three things; (1) that they were over 40; (2)
that they were qualified for the job they held; and (3) that they suffered an
adverse employment action (see
What Is An Adverse Employment Action?).
However, in the case of a RIF, there is a fourth element; (4) additional direct
or circumstantial evidence which demonstrates that the employer was motivated
by employee’s age in making its decision. (See Godfredson v. Hess & Clark, Inc.) for an employee to satisfy the
fourth element, they need to show “that a comparable non-protected person was
treated better.” (See Ercegovich v. Goodyear Tire & Rubber Co.)
For example, inSchram v. Schwan’s Sales Enterprises, Inc,
there was a question whether a RIF was the real reason for the discharge of a
57-year-old employee as division manager, or if the RIF was a pretext (lie) to
cover-up age discrimination. In Schram, the United States District Court for the
Southern District of Ohio held that there was enough evidence for the case
to go before a jury when the employee was able to present additional
circumstantial evidence of age discrimination. In Schram, the employee
was able to show that after the employer implemented the RIF process, the
employer was aware that another employee in the same position as Schram would
soon retire. However, instead of moving Schram to the retiring employee’s job, the
employer decided to layoff the 57-year-old Schram and offered the retired
employee’s position to a 35-year-old new employee.
On the other hand, in Schoonmaker
v. Spartan Graphics Leasing LLC,the
Sixth Circuit Court of Appeals held that it was not enough to merely
show that an older employee was laid off while a younger employee was retained.
In Schoonmaker, a 58-year-old employee was laid off while a 29-year-old
worker was allowed to keep her job. The Sixth Circuit held that it was not
enough for Schoonmaker to show that she was terminated instead of a younger
employee. In a RIF situation, employees are also required to show that they
were singled out for discriminatory reasons. In her case, Schoonmaker needed to
point to discriminatory comments made by her supervisors or show that she had
superior qualifications compared to the employees who were not laid off.
While everyone is protected from a discriminatory layoff,
older workers receive additional protections under the Older Workers
Benefit Protection Act (OWBPA). The OWBPA lays out specific rules that an
employer must follow if they are implementing a reduction in force if.
Specifically, the OWBPA pertains to RIF’s that are accompanied by a severance
package, or a waiver of rights. Quick aside, do not sign anything your employer
gives you in connection with a RIF until you call the right attorney and review
The OWBPA requires an employer to provide RIF employees over
the age of 40, in a group layoff, with a list of other persons laid off in the
RIF as well as those who were kept, identified by job title and age. It is also
illegal for an employer to pressure older workers to sign a severance agreement
in connection with a RIF. Finally, the OWBPA requires that an employer allow an
older RIF employee 21 days to review their severance agreement (45 days in the
case of a group layoff) and seven days to revoke their signature on a severance
There is no doubt that as a society, we are navigating uncharted waters. At Spitz, The Employee’s Law Firm, we understand the hardships businesses, particularly small businesses, go through. However, these hardships are no excuse to target vulnerable employees. If you feel that your employer has targeted you for lay off because of your race/color, religion, gender, national origin, disability, pregnancy, or age, or if you even think that you might need an employment lawyer because you were laid off because of coronavirus, then it would be best to call the right attorney to schedule a free and confidential consultation. Call our office at 866-797-6040. Spitz, The Employee’s Law Firm and its attorneys are experienced and dedicated to protecting employees’ rights and solving employment disputes.