Over the last several weeks, public employers have diligently transitioned employees to alternative work arrangements and implemented necessary safety protocols for employees working on site and in the field. As Governor Inslee begins to “turn the dial” and progressively lift the Stay Home, Stay Healthy restrictions, the focus now turns to the staggering financial impact caused by this global health pandemic. In this context, it is important to keep in mind some of the fundamental principles governing employment decisions such as layoffs and furloughs.

Make Sure There Is a Roadmap. As with any employment decision, it is important to review the governing documents. This may be a layoff policy, a furlough policy, an administrative order, a civil service rule, or a collective bargaining agreement that governs the selection of impacted positions/employees for a layoff, notice requirements, and any bumping or recall rights. Agencies must strictly follow the roadmap they have set forth in writing.

In the absence of a governing policy or agreement, it is critical that the process for identifying impacted positions and employees be developed and thoroughly reviewed to ensure that it serves the legitimate business interests of the organization, and that there is no adverse impact on any protected class or status. If overtime-exempt employees are chosen for a furlough, careful attention should be given to ensure that the furlough does not compromise the employee’s overtime-exempt status.

The Duty to Bargain. In the absence of a contract waiver, an employer has an obligation to bargain the decision and impact of any layoff or furlough. This principle was recently affirmed in Kitsap Cty. v. Kitsap Cty. Corr. Officers’ Guild, Inc., 193 Wash. App. 40, 61–62, 372 P.3d 769, 779 (2016). The county brought a declaratory judgment action following the union’s demand for collective bargaining on the county’s decision to lay off two corrections officers for budgetary reasons. In evaluating the guild’s demand to bargain the layoff decision, the court explained that the layoff decision was not forced by an outside entity or made as a policy decision reflecting a change in services but was instead made purely for economic reasons. The court further concluded: “Although the county’s need to achieve budgetary savings was a legitimate interest, the county’s interest in the method by which the savings would be achieved was not at the core of its management prerogatives. The decision to achieve budget savings by laying off the officers was suitable for collective bargaining, and it so substantially impacted wages, hours, and working conditions in the bargaining unit that the decision was a mandatory subject of bargaining.”

Agencies must strictly follow the roadmap they have set forth in writing.

The issues of business necessity and employer choice were also addressed by the Public Employee Relations Commission in King County, Decision 10547-A (PECB, 2010). In that case, the county negotiated with a coalition of unions to close certain offices as part of an agreed-to furlough plan; the complainant in that case, ATU Local 587, was not part of the coalition, even though the offices to be closed would impact 65 ATU-represented employees. Despite the lack of an agreement with this specific union, the employer continued with its planned office closures, which resulted in furlough days for the ATU members. The commission found that “although outside forces may have impacted the employer’s budget, no outside force compelled the employer to choose furloughs as the means by which to reduce its budget.”

When cities are faced with the duty to bargain, it is important to be proactive, transparent, and creative in identifying cost-saving measures necessary to address what may be an evolving financial landscape. Employers are encouraged to consult with their employment and labor lawyers to navigate these issues.

Avoid the Last-Minute Frenzy. In addition to evaluating the duty to bargain and any notice requirements that may exist by policy or contract, it is important to provide sufficient time to carefully vet the legitimate business decision as to why a certain position or employee is being selected for layoff as opposed to another position or employee. For seniority-driven layoff s, the analysis may be clear. However, when subjective criteria are relied upon, the layoff decision must be carefully vetted to ensure that the decision is based upon legitimate nondiscriminatory and nonretaliatory reasons that are consistent with the organization’s documentation.

Additionally, it is important to evaluate whether the impacted employees are entitled to a Loudermill hearing (or opportunity to be heard) before a layoff decision is implemented. Employees with cause protection generally should be offered an opportunity to respond to the preliminary decision to lay them off (i.e., an opportunity to be heard) before a final decision is made. Finally, taking the time to produce a thoughtful written explanation for the layoff and any benefits offered (including any offer of severance or benefit continuation in exchange for release of claims) goes a long way toward demonstrating respect and compassion for a difficult transition. Wrongful claims sometimes arise because an individual did not feel respected or treated fairly throughout the process. Avoiding the last-minute rush mitigates this risk.

Protecting Employees Who Are Working or Return to Work Following a Furlough or Layoff. As employees transition back to work or return from a furlough or layoff, there are likely to be several questions as to the measures implemented to ensure their safety at work and what may happen in the event that further restrictions are implemented again in the future. It is recommended that employers regularly communicate and update appropriate safety policies (to include teleworking where appropriate) to ensure that employees are aware of the employer’s safety expectations and new protocols in light of this evolving pandemic.

Beth Kennar's practice involves a range of labor and employment law matters for both public and private sector employers, including compliance with legal obligations, training, workplace investigations, and collective bargaining negotiations.