These are anxious days for in-house counsel and HR managers for airlines and other aviation entities.  Consumer demand is rising, but Cares Act funding is running out in September, and the COVID-19 pandemic continues to wreak havoc.  Although the C Suite will decide which layoffs to continue or make permanent, and who should be brought back or re-hired, it will fall to in-house counsel and HR to minimize the legal risks of these personnel decisions.

Raising the stakes is the fact that scrutiny is high.  Labor unions, as well as non-unionized workforces, are ready to sound the alarm over any perceived unfairness, while the news media is alert for any story that can be portrayed as scandal.  Perhaps more threatening still is the plaintiffs’ bar, which is ready to characterize decisions made solely from economic necessity as violations of state and federal law.

Here are some steps to take to see you through this tricky time:

  1. Review proposed layoffs to determine if objective criteria (such as seniority or position) are being applied.  Are some similarly situated employees being treated differently than others?  If so, the decision will carry legal risk, especially if some of the individuals receiving “worse” treatment are in a protected class.  Remember that an employee may be in a protected class because of immutable factors such as race or gender or because of protected activities such as union activity, safety complaints, opposition to allegedly unlawful practices and the like.  Review the  personnel files of the affected employees for information that might contradict the articulated objective reasons for the decision.  For example, is a performance-based decision contradicted by past performance evaluations? To avoid the impact of “groupthink,” have the articulated reasons for individual employment decisions reviewed for credibility by someone outside the initial decision making process.
  2. Even if you are satisfied that individual employment decisions are based upon objective, non-discriminatory criteria and that there is no identifiable disparate treatment of individuals, analyze the overall impact of the individual decisions on protected classes of employees.  Such disparate impact may be unlawful, even absent intentional discrimination, unless justified by business necessity.
  3. If there is a labor agreement, or if there are contracts with individual employees, check to ensure the process and action taken are consistent with the contractual terms.
  4. Where is the employee based?  Be aware that laws vary considerably from state to state, and a termination decision that carries no risk in one state might lead to negative repercussions in another.
  5. Determine if the WARN Act applies and, if so, if it has been followed.  Keep in mind that a temporary layoff that was not initially counted as an “employment loss” for WARN purposes can become one “retroactively” if is extends longer than six months or is converted to a termination.  As a result, care must be taken not to inadvertently trigger a retroactive WARN violation that will be impossible to remedy.

Unfortunately, exercising due caution in the present environment is difficult.  In-house counsel and HR departments are being asked to do more with less.  As the old adage goes, however, an ounce of prevention is worth a pound of cure.  Putting the work in today will reduce stress and lead to a more tranquil, prosperous tomorrow. And, remember, Fox’s Aviation and Employment attorneys are standing by to assist!