March 07, 2025
RIF Resources & Reminders from the EEOC
I have heard from many clients and colleagues over the last month or so that they are implementing or are contemplating a reduction in force (RIF). Some involve fewer than five employees, some as many as 100.
If you are in a similar position, here are a few items for consideration and some FREE resources.
- Consult with your employment attorney – OK, that one’s not free.
- Be able to describe what factors you used to select who will be laid off or furloughed and why – what is your business rationale?
- Furloughs can be applied in a variety of ways that may impact items below as well as unemployment insurance eligibility. Understand if you want or need to temporarily furlough employees or lay them off.
- Once the employees to be RIF’d are selected, conduct an adverse impact analysis. Is there a protected group that is being RIF’d at a rate that is statistically greater than their representation in your workforce? The EEOC provides an example here.
- If you are providing severance pay with an agreement that includes a release of claims, be sure to comply with the notice requirements of the Older Workers Benefit Protection Act or OWBPA for employees aged 40 or above (at least 21 days to consider the agreement, 7 days to rescind, notice to consult with an attorney, and more).
- If you are laying off two or more employees, the EEOC may consider that a “group” layoff that requires at least 45 days to consider the agreement along with a specific OWBPA notice listing the ages of those chosen and not chosen for layoff.
- Depending upon how many employees you employ and the number being RIF’d the Worker Adjustment & Retraining Notice Act (WARN) may apply that requires a different notice.
- Your state(s) of operation may have related (displaced worker) laws, sometimes known as mini-WARN, additional notice, wage or severance (garden leave) payment requirements, and more. See #1.
In the interim, the EEOC provides some additional FREE guidance here that covers potential discrimination, retaliation, adverse impact, and agreement/notice requirements.
