San Francisco Employment Law Firm Blog
It appears that employers become progressively more creative in trying to cover up unlawful discrimination and wrongful termination as a lay-off. Because the employer’s motive for terminating an empoyee is inherently hard to prove, this is a temptingly easy way for employer to replace older workers with younger ones, females with men, and workers of color with white employees.
Here is a common situation, especially in the tech industry: a high level employee, who happened to be an Asian female with a distinct accent, whose postion is being “eliminated” is being demoted to a lower position or to the position she had previously, before being promoted to her most recent positon. A few months later, due to the alleged restructuring in the company, the above-mentioned eliminated position becomes open again, and a white male who is less qualified in every way, is being hired to fill that position. A few months or so later, the demoted female is being advised of the company’s cuts in workforce, and is handed a severance offer and a lay-off notice. The employer then rushes the employee to sign the release within a strict time limit so that she remains eligible for her severance.
Whether this kind of lay-off is discriminatory depends on many facts, but it surely is worth considering all the evidence available to support a discrimination claim, including the timing of events, and all the documents and e-mails suggeseting that the lay-off does not make sense and does not look right financially for the company. This would be useful not only in taking a legal action against the employer, but it can be just as useful in negotiating a higher severance, which any employee who is offered one should at least try to do directly or through an attorney.