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.

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