Running a RIF you can defend

Write the business case before you write names

Every defensible reduction starts with a dated, written statement of why: which costs, which functions, which change in the work. The EEOC frames the employer’s first job in a layoff as identifying the legitimate business reason behind it, and employment lawyers say the same thing from the other direction, because the memo you write before the decision is evidence and the memo you write after it is damage control. Note the alternatives you considered on the way, such as a hiring freeze, attrition, reduced hours, or a voluntary program, and why they did not get there. A position elimination is a decision about the work, so keep the language about roles and functions rather than about individuals.

Set objective criteria before the list exists

Selection criteria get written, approved, and dated before anyone runs them against people. The defensible ones are structural and observable: the skills the go-forward work requires, redundancy between roles, the documented performance record, and seniority where it is lawful and consistent with your agreements. Subjective or shifting criteria are what discrimination claims are built on, so every manager in the decisional unit applies the same factors the same way, and any exception gets a written reason at the time it is made.

Performance deserves a caution. It is a lawful factor, and it is also the one most often attacked as pretext, because it turns on the file you actually have. If the record is thin or contradicts the ranking, the criterion works against you. Use the documented record, not the reputation. And some things are never criteria at all: leave status, an accommodation, a complaint, or any protected characteristic.

Test the list before it is final

Run the criteria and produce the list, then test it while it can still change. The EEOC’s guidance for small employers walks the exact sequence: list who would be laid off under your criteria, compare each group’s share of the list against its share of the workforce, and where one group is affected at a clearly higher rate, ask whether adjusted criteria would still meet the business need.

The standard screen is the four-fifths rule from the federal Uniform Guidelines. Work out each group’s retention rate, divide it by the highest group’s rate, and treat anything below 80% as a flag. You can run that math in the browser with the free Adverse Impact Calculator, and the four-fifths note covers what the flag does and does not mean. Two cautions from the Guidelines themselves: the ratio is unstable on small groups, and on large numbers even a passing ratio can matter if the difference is statistically significant, which is why consequential reductions get a significance test alongside the screen. Document the analysis you ran and any adjustments you made, because the test only protects you if it happened before the decision was final.

Get the over-40 waivers right

Most reductions offer severance in exchange for a release of claims. The moment anyone signing is 40 or over, the release must meet the OWBPA’s knowing and voluntary standard, and the requirements are mechanical: plain language, a specific reference to ADEA rights, written advice to consult an attorney, consideration beyond what the person is already entitled to, at least 21 days to consider an individual agreement or 45 days in a group program, and a 7 day revocation period after signing that cannot be shortened or waived.

Group programs carry one more requirement that trips employers constantly: a written disclosure, delivered when the consideration period starts, describing the decisional unit, the eligibility factors and any time limits, and the job titles and ages of everyone selected and everyone considered but not selected. Material changes to the final offer restart the clock. A defective waiver cannot be cured with a follow-up letter, and no waiver can stop anyone from filing an EEOC charge or participating in an investigation. The OWBPA release rules note covers the full checklist.

Check the notice thresholds

Federal WARN requires employers with 100 or more employees to give at least 60 calendar days of written notice before a covered plant closing or mass layoff: a closing that costs 50 or more jobs at a single site, or a layoff of 50 to 499 that is at least 33% of the active workforce there, or 500 or more regardless of share. Separate smaller layoffs within any 90 day window aggregate toward the thresholds, so a reduction run in waves does not escape the math. Many states layer stricter mini-WARN rules on top, with lower headcounts or longer notice, so the state check is part of the federal check. The WARN Act note carries the details and the exceptions.

The traps that sink otherwise clean lists

The recurring failures are timing and drift. A selection that lands next to a leave request, an accommodation, or a complaint reads as retaliation and draws exactly that scrutiny, so check every name on the list for protected activity and recent leave before it goes final. Managers applying the criteria differently across units, exceptions granted without a written reason, and a role recreated shortly after it was eliminated all undercut the business case you wrote in step one. And relabeling a performance exit as a restructuring does not work, because courts look through the label to the facts.

If a flagged group survives on the final list, if you are defending criteria after the fact, or if the reduction touches employees on protected leave, get legal advice before you proceed. The stakes are highest exactly here, where a selection decision can become the center of a claim. This is general information.

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