Did Your Employer’s Layoffs Break the Law?

Federal and State laws regulate employee layoffs. If your employer violated these laws, you may be entitled to compensation.

Sometimes, businesses are forced to lay off employees for one reason or another. These layoffs could be the result of numerous business concerns, all of which require a reduction in force.

However, federal and state employment laws prohibit employers from using discrimination or retaliation to determine which employees are laid off. Additionally, employers are required to provide notice when a mass-layoff occurs. Any violations of these laws can lead to an employment lawsuit that could cost your employer millions.

What Is an Employee Layoff?

An employee layoff is intended to be a temporary solution to a temporary problem. While there is no law requiring an employer to rehire you if you are laid-off, he usually wants to rehire the person when work picks up again. However, sometimes a temporary solution becomes a permanent one.

Unfortunately, business is unpredictable. Sometimes, the work never picks back up to hire back all laid-off employees. Sometimes, you, as a laid-off employee, find other work while laid off. Whatever the reason, you may not always be rehired.

When fired, you must leave a job without the intention of being asked back or rehired. A layoff, on the other hand, is the result of a business problem that is beyond your control. You have the opportunity to be eligible for rehire if the business corrects the problem.

The most significant difference between a layoff and termination is a layoff is considered the fault of the employer. In contrast, termination is viewed as the fault of the employee.

Can an Employer Layoff One Person?

An employee can lay off as many employees as needed. If a department is only one employee, then one employee may be laid off. If the employer needs to conduct a mass layoff of 50 or more employees to help preserve his business, then 50 or more employees can be laid off.

As long as your employer has a legitimate business reason for a layoff, there is no minimum or maximum number of employees that can be let go.

How Much Notice Should an Employer Provide Before a Layoff?

The amount of notice depends on your employment state and how many employees are laid-off. Under federal law, the WARN Act requires employers with 500 or more employees to provide at least 60 days’ notice to employees of mass layoffs. The WARN Act defines a mass layoff as 33% of the workforce, which is 50 employees or more.

State Warn Acts vary between states. Some states, like New York, require employers with 50 or more employees to provide 90 days’ notice when laying off 25 or more employees.

Under New Jersey law, employers must provide at least 60 days’ notice to employees when 50 or more employees will be laid off in a 30-day period. The business must employ 100 or more employees. Furthermore, New Jersey considers all business facility locations under the umbrella of one employer. The Federal WARN Act and other states count each facility as its own entity that must have the required number of employees.

California’s WARN Act requires employers with 75 or more full or part-time employees with 50 or more layoffs receive 60 days’ notice before a layoff.

Is It Discrimination if Layoffs Target One Group of People?

Most states offer at-will employment. Therefore, an employee can be fired for almost any reason. The same is true for layoffs. Employers may lay off employees for nearly any purpose. However, the law says employees cannot be targeted because they belong to a particular group of people.

The following groups of people are protected from discrimination under the law. They are known as protected classes:

An employer may not choose to lay off people who are part of a protected class simply due to their status as a member of the protected class. This act is workplace discrimination and is illegal.

Can an Employer Layoff a Person Who Complained About Harassment?

An employer may not lay you off simply because you complained about workplace harassment. This act is known as retaliation. It is prohibited under federal and state laws.

The law is clear that employees must be free to complain about reasonable suspicion of workplace harassment. Even if the actions were not harassment under the law, the employee cannot receive any retaliation in exchange for the complaint.

If your employer includes you in a layoff simply because you complained about retaliation, you likely have a case for employment discrimination and retaliation.

Can an Employer Layoff an Employee Out on Temporary Disability?

Your employer can lay off any employees for business reasons, such as loss of work or being purchased by another company. This layoff can include those on temporary disability.

However, under the Americans with Disabilities Act (ADA), you cannot be targeted to be laid off because you are out of work due to a temporary disability. If you can show you were targeted, you may have a claim for workplace discrimination. You should be able to show one of the following:

  • You are the only person laid off in your department
  • You are the only person included int he layoffs within the entire company
  • Your employer only laid off people who were out of work due to temporary disabilities or using FMLA leave.
  • The majority, but not all, employees laid off are using temporary disability at the time they were laid off.

Can an Employer Layoff a Pregnant Employee?

While an employee can be laid off for almost any reason, the Pregnancy Discrimination (PDA) Act prohibits employers from laying off pregnant employees simply because they are pregnant.

Many employers will attempt to layoff pregnant employees during temporary layoffs, if possible. Some may believe they are doing these employees a favor. However, it is a violation of the law.

An employee may volunteer to be included in a layoff. However, an employer may not target pregnant employees during a layoff.

Does an Employer Have to Provide a Severance Package to Laid Off Employees?

Employers are not required by any law to provide a severance package to laid-off employees. Instead, an employer must pay the remainder of wages through the last day of employment and any remaining sick time and vacation days.

Many employees, as a sign of good faith, will pay severance pay. Typically, the terms of the payment will be outlined in the policy and procedures manual. Conditions may also be laid out through your union if you are represented by one.

Can an Employee Sue an Employer Over Layoffs?

Typically, layoffs are legal. However, if you feel you were laid off as an act of retaliation or discrimination, you may have grounds to sue your employer.

If your layoff is an act of discrimination or retaliation, you may file a claim with the Equal Employment Opportunity Commission (EEOC). The EEOC will investigate your claim and provide a Right to Sue letter. This letter will give you 90 days to file a complaint in federal court.

You may also sue your employer if you were not given proper notice under the federal or state WARN Act statutes. You may file a lawsuit in federal or state court as a result of such violations.


Were you laid off by your employer? Do you think your layoff was an act of discrimination or retaliation? Did your employer fail to give you proper notice?

If you were laid off in a violation of any of these laws, the experienced employment discrimination lawyers at the Derek Smith Law Group can help. Contact us today at (800) 807-2209 for a free consultation. We do not collect any fees until we help you win your case.


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With over 25 years of experience, we have represented thousands of employment discrimination victims. We have recovered millions for our clients, including the largest emotional distress jury verdict in an employment law case ever to be sustained on appeal!

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