There is no question that COVID-19 has completely changed the American workforce. We wrote here about the Families First Act, which gives paid leave to employees under certain circumstances where they have to miss work due to the Coronavirus. We wrote here about the Michigan shut down and how it applies to employees and employers across the state. Today, let’s talk about layoffs.
People across Michigan, and throughout the United States, are being laid off due to Coronavirus. Unemployment claims have spiked well beyond what unemployment offices can efficiently handle. Entire businesses are shutting their doors. Business that are remaining partially open are cutting staff and hours. We have already gotten many calls from people asking what they can do about their layoff.
Michigan is an at-will state. That means that it is not illegal to fire someone for any reason or no reason at all, as long as it is not an illegal reason. Coronavirus and the orders and regulations related to it constitute a legitimate non-discriminatory business reason to reduce staff in general, but it is still possible for employers to take these actions in a way that would be illegal.
If an employer is deciding which employees to lay off or whose hours to reduce, the decision cannot be made on a discriminatory basis. It is legal and legitimate for an employer to need to reduce their staff but keep some employees during the Michigan shut down. For example, restaurants may need enough employees to prepare and deliver food, but do not need waitstaff for tables because people cannot eat in the restaurant itself. Offices may have some people work from home but not have the need or the ability for all employees to do so. Daycares may keep enough staff to care for the children of “essential workers” but reduce employees to reflect for an overall reduction in children to watch. There are countless scenarios where an employer may need to layoff some employees but not all, including examples where the employees perform essentially the same work.
Employers cannot use race, religion, sex, color, national origin, height, weight, marital status, military membership, age, or disability as a basis for making decisions about whose hours to reduce or who to lay off completely. Even though reducing staff in general is legal, using any of these criteria to make the decision would constitute illegal discrimination. It would also be illegal to layoff an employee because the employee has engaged in protected activity, such as complaining about illegal discrimination or an illegal pay practice. This would constitute illegal retaliation.
Employers are allowed to use non-discriminatory criteria to make decisions about which employees to keep during a complete or partial shutdown. Examples of criteria that can be used would include seniority, work performance, job duties, rate of pay (since employers are allowed to make decisions to reduce a company’s costs), or really any other non-discriminatory factor.
If you believe that you were selected for layoff or a reduction in hours because of a discriminatory or retaliatory reason, contact us.