In The Muppet Christmas Carol, the “Ghost of Christmas Yet to Come” escorts Ebenezeer Scrooge back to a graveyard after taking Scrooge through a disturbing future, prompting Scrooge to say, “Must we return to this place?” As we forecasted last week, much like the Dickensian apparition, so, too, does our blog return to the often-unpleasant topic of reductions in force (RIF).

While we covered WARN Acts (both federal and state) in our last post, RIF-related considerations don’t stop with there. Even if you’re satisfied that you have met your WARN-related obligations, there are even more federal laws and practical considerations to consider when implementing a RIF. But fear not. If you plan your layoffs with these considerations in mind, you can minimize the risk of unwanted confrontations with employees past.

• Anti-discrimination and adverse impact. Selection criteria and implementation methods should avoid the appearance that employees were selected based on a protected category in violation of Title VII, the ADEA, the ADA, and other federal or state statutes. As we noted previously, while adverse impact enforcement is no longer in vogue with the EEOC, a former employee can still pursue that claim in litigation. Consider the employees that you select for a RIF and ensure that those decisions correspond with a legitimate business need. Maintain and document a consistent, nondiscriminatory process. Consult with legal during the process to make sure that an outsider (like a plaintiff’s lawyer) will not be able to gin up a discrimination claim.
• Don’t forget about potential retaliation claims. Employees who have raised harassment or discrimination claims (internally or externally), will believe that they were included in the RIF because of their complaint. Make sure that their complaints had no impact on the RIF decision. While you are at it, look at employees who engaged in other protected activity — filed an OSHA complaint or raised an internal safety concern, took protected leave (FMLA, military), complained about their pay (internally or with a federal or state agency), or received workers’ compensation benefits — as they are all potential retaliation claims. Work with legal to identify those folks and make sure they are properly included in the RIF.
• Releases and older workers. If offering severance in exchange for releases, the ADEA and the Older Workers Benefit Protection Act impose strict rules for knowing and voluntary waivers, including prescribed disclosures to workers who are 40 years old or older and minimum consideration and revocation periods. A misstep in this process can void waivers.
• Collective bargaining and the NLRA. Employers with unionized sites must honor bargaining obligations, past practice, and contractual notice provisions. Strikes and lockouts implicate WARN differently, and unionized settings require careful coordination with labor obligations.
• Benefits continuation and COBRA. Terminations typically trigger group health plan continuation rights under COBRA, requiring timely election notices and premium handling. Align severance and benefits practices with plan terms and ERISA requirements.
• Immigration, military, and leave protections. Special rules apply to certain visa holders (e.g., notice and return transportation for H-1B workers) and employees on protected leave (military, FMLA, ADA). Reductions must account for these statuses and avoid interference or retaliation.
• Wage-and-hour and pay timing. Make sure that you provide final pay, accrued vacation or PTO payout where required, and wage statements in compliance with state law. Remember that state requirements vary widely in these areas. Align separation dates and payroll cycles with WARN schedules.
• Communications, records, and regulators. Draft clear, consistent messaging to employees, government recipients, and the public. Maintain records sufficient to demonstrate compliance (e.g., threshold calculations, decisional data, selection matrices, notice content and delivery).

Practical Takeaways for Employers Contemplating a RIF

Amid the legal and practical pitfalls, employers can take steps to protect themselves and treat their employees with respect. While not an exhaustive list, keep in mind the following when you begin planning a RIF:

• Build a defensible selection process. Define decisional units, articulate job-related criteria tied to business needs, and apply them consistently. Make sure the decisionmakers are following the process.
• Coordinate severance, releases, and benefits. Align severance policies with state mandates (e.g., New Jersey’s automatic severance), confirm OWBPA-compliant processes for age-related waivers in group programs, and coordinate COBRA notices and plan administration to avoid coverage gaps.
• Manage union and regulatory touchpoints. In unionized settings, confirm and follow bargaining obligations and contract notice requirements. Anticipate public disclosure and plan communications accordingly.

As we noted in our prior post, terminating employees is never easy. However, employers should take steps to handle these difficult decisions with care and respect for their employees. Doing so will lead to better outcomes for you and your employees. To quote Dickens’ non-Christmas Carol work, “Life is made of ever so many partings welded together… Divisions among such must come, and must be met as they come.” Whether during this holiday season or beyond, please reach out to Bradley if you have any questions when you’re making decisions about your staffing needs.

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