Miami Herald BY CINDY KRISCHER GOODMAN

As pink slips become as common as Post It notes, our workplaces are becoming a breeding ground for employment lawsuits. Smart employers are asking the right questions about their legal obligations during a layoff. And, wise employees are brushing up on their rights.

I sought out Michael Casey, a corporate labor lawyer with Epstein Becker & Green, to respond to concerns of readers. Casey represents employers. I also went to Robert Weisberg, a Miami attorney who represents workers. The two offered some answers and advice.

Q: Do businesses have to pay severance when they lay off employees?

MC: Most employers are being fairly generous with respect to severance and that’s a good thing, if they can afford it. But there is no legal obligation for severance.

Q: If they don’t have to by law, why do employers offer severance?

MC: Employers give severance for three reasons. One is altruism, most also are human beings and want to cushion the blow. Two, they offer it to protect themselves from lawsuits. Three, doing so builds trust with remaining employees.

Q: What mistakes are employers making when doing layoffs?

MC: Some are making reductions without exploring alternatives such as furloughs, reducing hours, reducing the workweek. Reductions in workforce can be disruptive on the employer and employees. There are things that should be looked at first.

Q: Are businesses required to follow a formula for severance? Do they have to offer the same deal to every employee they lay off?

MC: Most larger employers will have a severance policy. The formulas vary. Of course, because there is no obligation to give severance, most employers who offer it ask employees to sign a release saying they will refrain from suing them in connection with a layoff.

Q: Is it mandatory that an employer offers health insurance continuation (COBRA) when reducing its workforce?

MC: The employer’s only responsibility is to give COBRA notice to inform the employee he has the right to continue on its health insurance plan. But the employee has to pay full cost.

RW: COBRA is great but if you have been laid off, you may not have the money to pay the premiums. The new stimulus bill addresses this with a federal subsidy for COBRA premiums for up to nine months for workers who lose their jobs. I think it is a right-on response to what’s going on today.

Q: If an employee is off on medical or maternity leave can he or she get laid off?

RW: Yes, if the employer is following a formula for reduction in workforce and he or she would have been laid off anyway.

Q: What’s the basis for most of the lawsuits you are seeing?

MC: As employees become more desperate, they either are declining to take severance and suing or they are signing the release, taking the severance and suing anyway for discrimination. Some actually take the money and use it to hire a lawyer.

RW: A lot of it is age discrimination. There are also issues of employment contracts, mostly employers breeching them to cut costs or coercing employees to renegotiate.

Q: Are these lawsuits successful?

MC: You can be successful if the claim is based on failure of the employer to comply with the Older Workers Benefit Protection Act, which applies to anyone over age 40 and sets out requirements for releasing claims against the employer. There are vague provisions in that act that cause employers to have big legal problems.

RW: I think the overwhelming majority of individuals who are laid off won’t have any successful legal basis to challenge the loss of their employment.

Q: Do you have any advice for employees at businesses who fear layoffs?

MC: Think twice about going on any type of leave or extended vacation. An employee will go on leave and an employer reassigns the work and figures we don’t need this person, we’re getting by fine without him.

Make yourself valuable publicly and noisily to your employer. Work late, work hard, don’t complain, be positive and remember, attitude counts.

Miami Herald BY CINDY KRISCHER GOODMAN

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