ESPN is generally known as the worldwide leader in sports. This week, however, they were in the news for a reason that didn’t involve reporting on deflated balls, two people yelling at each other over a topic no one generally cares about, or whether or not the Bears should have traded multiple picks to move up one spot to pick Mitchell Trubisky. Rather, it was because ESPN laid off 100 employees, some recognizable, others not so much. (Side note: if you watched ESPN the day of the layoffs, you may have noticed the other anchors treated it like the people fired had actually died; this, however, is not the case as evidenced by the multiple twitter postings every single one of them made during the layoff period.).
Without getting into whether Ed Werner or Jason Stark should have been fired, or if other people should have been shown the door (I’m looking at you, Mel Kiper), there are some lessons to be learned during this trying time for ESPN. First, in Pennsylvania, employers must be mindful of the Worker Adjustment and Retraining Notification Act (WARN) if they plan on engaging in a mass layoff. WARN requires employers to provide employees with notice 60 days in advance of covered plant closings and covered mass layoffs. This notice must be provided to either the affected workers or their representatives (e.g., a labor union); to the State dislocated worker unit; and to the appropriate unit of local government.
Employers are covered by WARN if they have 100 or more employees, not counting employees who have worked less than 6 months in the last year and not counting employees who work an average of less than 20 hours a week. A covered employer must give notice if an employment site (or one or more facilities or operating units within an employment site) will be shut down and the shutdown will result in an employment loss for 50 or more employees during any 30-day period. (excluding employees who have worked less than 6 months in the last year and employees who work an average of less than 20 hours a week for that employer). A covered employer must also give notice if there is to be a mass layoff that does not result from a plant closing, but will result in an employment loss at the employment site during any 30-day period of 500 or more employees, or of 50-499 employees if they make up at least 33% of the employer’s active workforce (subject to the same exclusion described above).
Even employers not covered by WARN should be mindful that other claims could arise from any reduction in force (RIF) (i.e., claims for discrimination or retaliation). To lessen the potential risk, employers should have a written plan in place prior to engaging in a RIF that identifies certain factors including, but not limited to, why the RIF is occurring, how the impacted department(s) were selected, and how the employees subject to the RIF were identified (i.e. seniority, disciplinary actions, salaries, etc.). While an employer can’t eliminate the risk of a lawsuit, it can protect itself by establishing a defense to any such claims.
At the end of the day, it is never easy having to terminate a group employees, whether they be ESPN anchors covering the Tuscaloosa Mudhens, or longtime employees of your company. An employer should not compound the potential issues by failing to have a plan in place prior to engaging in any such group layoff.