Terminating the Employment Relationship

A. L AYOFF R ULES An employer must follow its internal rules regarding not only the circumstances that can prompt layoffs, but also the procedure to follow in implementing the layoffs. Failure to do so could result in a laid off employee successfully asserting a right to reinstatement, back pay and benefits for the period that they were improperly laid off. If that happens, the employer can lay off the individual again, in compliance with its internal rules. However, the error would be costly in terms of back pay and benefits, as well as legal fees. Of course, before an agency can comply with its rules and procedures, it must first have them in place. Having specific rules and procedures in place will prevent an employee or group of employees from later claiming that an agency manipulated the layoff procedure to achieve a specific result. B. D UTY TO M EET AND C ONFER O VER I MPACT OF L AYOFFS Government Code section 3505 sets forth the obligation to engage in collective bargaining and to “meet and confer in good faith” regarding “wages, hours, and other terms and conditions of employment.” Government Code section 3504 excludes from the scope of representation (and therefore from the scope of barg aining) matters related to the “merit, necessity, organization of any service or activity provided by law.” Unfortunately, there have been relatively few judicial interpretations of this statutory exclusion from the duty to bargain. Although the exercise of certain management rights may be outside the scope of bargaining, the impact or effect of such an exercise by management creates a duty to negotiate. In Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608 [116 Cal.Rptr. 507, 526 P.2d 971], the California Supreme Court cited with approval cases decided under the National Labor Relations Act that require an employer to negotiate the impact/effects of a layoff decision. Consequently, an agency has a duty to meet and confer regarding effects/impact of a layoff. An example of an effect/impact of a layoff could be the workload for remaining employees. C. P OTENTIAL L EGAL R AMIFICATIONS : D ISCRIMINATION /W RONGFUL T ERMINATION /R ETALIATION As with all other employment decisions they make, employers must ensure that their decision to impose layoffs on particular job classifications can be supported by sound business reasons. The concerns of discrimination, wrongful termination and/or retaliation are more likely to occur in situations where the employer is eliminating a job classification (resulting in a layoff) that has only one employee, or temporarily laying off such an employee. That employee is likely to question why they were chosen over all others and file a discrimination, wrongful termination and/or retaliation claim which must be defended.

Terminating the Employment Relationship ©2022 (s) Liebert Cassidy Whitmore 94