Employment Counseling and Litigation

Reductions in Force

A recent federal court decision demonstrates the importance of a clear reduction-in-force selection process.

In Ameti v. Sikorsky Aircraft Corp., the plaintiff claimed discrimination when he was selected among 17 of his peers in a reduction in force. The company utilized an employee assessment to determine the abilities of the employee and his peers to perform under current and projected business conditions. The assessments measured five factors: achievement results, skills, qualifications, business orientation, and interpersonal skills. The company wisely did not use past performance reviews in assessing employees for the selection process, recognizing that those reviews were retrospective and not focused on current and projected business conditions. Notably, all of the prior performance evaluations had scored the plaintiff as “fully competent,” which easily could have raised a question in court.

The company was able to use its scoring process to objectively demonstrate in court its independent judgment that, compared to his peers, the plaintiff’s skills were lower and that he made more mistakes than others under consideration. Absent the independent RIF evaluation, the plaintiff may have had a compelling question of fact for a trial.

The selection process for a RIF can be vulnerable to allegations of unlawful bias. Taking the time to develop a selection process and thoughtfully implement it payed off in this case. Not only did it provide a defense to subsequent claims, it also seems to have helped the company make a better selection decision.

One more thought on the subject: The selection process should include at least two people outside the determination to consider possible unintended bias claims. One of those two might be outside counsel.