I Was Laid Off But Replaced. Is that Legal?

by Evil HR Lady on May 19, 2020

Like many people, I was laid off as part of a company-wide reduction in workforce due to COVID 19. One of 50-60 people at a software company serving one of the hardest-hit industries. They did a decent job as far as paying some severance, etc.

However, I keep seeing on Linked In that other people in the company have moved into my old role (three were laid off from my team, and two have been backfilled already) and also posts of several other people in other departments getting various promotions.

I thought when positions were eliminated there were some legalities around replacing that exact position for a period of time?

I can’t help but think they made the cuts deeper than they needed to and they’re not as bad off financially as they thought…but yet aren’t calling any of us to rehire (even though they said we were eligible). I was given compliments on my performance by two managers in the weeks before but now, of course, can’t help wonder if some cuts were for other reasons and made under this cloud cover.

Is this weird? Tacky? Or normal?

Normal. And a little bit tacky.

When a company needs to cut headcount, they generally try to do so in a way that will help the company the most. This can mean that if person A is a top performer, but person B’s job is more important to the future of the company that they eliminate person B and move person A into that position.

From your vantage point, it looks horrible. Why on earth did they terminate you if you were a good performer and they needed the position filled? There could be lots of reasons.

The easiest way to see this is in a union termination, where something called “bumping rights” often comes into play. For example, there are five team leads, and the company decides to lay off one of the team leaders. This person has seniority over the people below him, so he takes the top remaining position and bumps that person out of their job. Then that person can bump the next person out, and on down the chain it goes until the person with the lowest seniority is out the door. The position eliminated is Team Leader, but the person who loses his job is junior trainee.

Frequently, when companies have to consolidate, the people who remain are overall top performers who are cross-trained (or capable of being cross-trained) who now fill in for multiple rolls.

As for recalls, they are under no legal obligation to recall anyone, but I wouldn’t expect a software company to be recalling quite yet. They’ll probably want to wait until their clients are up and running again before they expand again.

The legality of filling a recently eliminated position comes into play when the reason for the termination was pretextual. That is we say, “Jane, your position is eliminated. Today is your last day.” And then we replace 52-year-old Jane with 30-year-old Steve. Jane could make a claim of gender and age discrimination here.

But, there’s no pre-text here. COVID-19 devastated many industries and many people lost their jobs. Moving people around internally is the logical thing to do.

The business is shuffling people around, hoping to survive. Unless you have reason to believe that you were targeted for an illegal reason (age, gender, disability, pregnancy status, etc), then it’s tough luck.

Keep looking for a new job and keep your eye on your old company. There is a chance they’ll want to hire you back when their business picks up, but never count on it.

{ 7 comments… read them below or add one }

grannybunny May 19, 2020 at 1:10 pm

Does it make a difference that the employee was paid severance pay? That is, that their status may be — technically — terminated, as opposed to merely laid off?

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Mr. Cajun2core May 19, 2020 at 3:37 pm

I don’t think so. I was laid off and paid severance pay from my last job. I was most definitely a reduction in head count.

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Machiavelli the Manager says May 19, 2020 at 1:35 pm

Dramatic tumult is the chance to clear deadwood and push an agenda further. In other and immortal words, “You never want a serious crisis to go to waste. And what I mean by that is an opportunity to do things that you think you could not do before.”

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Elizabeth West May 19, 2020 at 6:37 pm

Another thing companies do (even before the pandemic) is lay people off, then replace them with new employees at a lower salary or with fewer hours. I’ve seen this happen at previous jobs. It even happened to me — an old workplace eliminated my position entirely and spread my work between remaining employees. They weren’t happy about it either, but there wasn’t anything we could do.
At least if you’re laid off it’s easier to get unemployment.

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Anthony May 20, 2020 at 3:07 am

Our understanding of employment has changed forever because of #COVID19. It’s now obvious that there is a permanent risk of job loss for almost everyone. There should always be a “plan B” job opportunity, unless we want to lose our income one day.

However, if an employee is actively and openly looking for a new job, that may hurt their current employment, relationships, promotion plans etc. On the other hand, not having “backup” job opportunities WILL results in a risk of being laid off and losing your income any day, just look at the current wave of layoffs.

In response to that, a group of volunteers created Mirajobs – the anonymous job search tool. It helps workers to mitigate the risk of unemployment by looking for a job in advance. It can also help to find a better job. As the tool is 100% anonymous, it’s also safe for your current employment.

How it works: post your anonymous jobseeker’s profile and let employers find it and apply to you. You only reveal your ID and contacts to best proposals after consideration. Mirajobs is safe, efficient and time-saving.

Also, Mirajobs.com is 100% free because this is a community-supported project.

Learn more: Mirajobs.com/layoffs

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John May 20, 2020 at 8:49 pm

Assuming that companies (i.e. individual people in authority, acting on behalf of the larger organization) are acting fairly and ethically, is just that: an assumption.

What really helps to assure that company actions will be in your favor are 1) to be a high performer; and 2) that you know the law and clearly understand, and are willing to use, ‘enforcement mechanisms’ such as legal action (administrative remedies, and then open court) if you or others are not treated legally and fairly. If there is not a clear legal cause of action, but you or others were clearly treated unethically, the remaining enforcement mechanism is found in reputation effects. Google, Yelp, Glassdoor, and word-of-mouth.

If the company acts out of survival, that’s one thing. But if they use pretexts to make their nefarious and self-serving changes–at your expense–then feel free to “release the hounds” on them. If they go there, you have to respond in-kind.

Such actions are the only thing that most people in business truly understand. Those people normally count on most others ‘going away quietly.’

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stacy a lall May 21, 2020 at 11:33 am

exact situation happened to me after working for 12 years with the company but they hired someone new for my position ( that never worked with the company)
Is that legal? I was a female manager & I was replaced by a male

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