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California Employment Lawyers > Blog > Employment > Layoffs and Terminations: Is there a Difference?

Layoffs and Terminations: Is there a Difference?


The subtle differences between being fired and being laid off may not mean much to you as an employee—either way, you are out of work. But when it comes to your ability to pursue legal remedies, there is a difference. Often, to minimize legal exposure, California employers will try to say you were one instead of the other, depending on which one makes it harder for you to bring a lawsuit.

Being Laid Off

As a general rule, you cannot sue for discrimination if you were just laid off. However, if the majority of employees laid off were of a protected class—for example, if 10 women and 1 man were part of an 11-employee layoff—this could be evidence of discrimination, entitling an employee to sue, regardless of whether it was a layoff or termination.

The WARN Act and Notices

If you were part of a larger layoff, you have a right to 60 days advance notice, if 500 or more employees are being laid off. If less than that amount is being laid off, you must receive the advanced notice if 33% of the workforce is being laid off. This is part of the federal WARN act.

If a plant or factory is closing and the closure results in the loss of 50 jobs within a 30 day period, you also must receive notice.

Layoffs are totaled over the course of 90 days, so an employee can’t avoid the WARN act by releasing only a few employees every month to get underneath the legal thresholds.

California has its own WARN Act, which applies when more than 50 employees are being laid off over 30 days or when a plant or factory is being located more than 100 miles away, or when a plant or factory closes completely and the factory has more than 75 employees.

This law doesn’t apply to temporary or seasonal employees.

Being Terminated

Termination is much different.

Usually, termination happens to just one, or a small number of employees. That means that an employee may have a better idea if he or she was laid off for an illegal reason, such as race, gender, disability or age discrimination.

Unlike layoffs, which happen for some external reason like poor finances or a downturn in business, termination often has a much more employee-specific reason, and that reason may be retaliation. Retaliation often isn’t at play in layoffs, but it is when there is a termination.

Breach of Contract

Although California is an at-will employment state, some employees in some businesses use employment contracts. Often those contracts will have provisions that allow the employer to lay off an employee. But if the employee is fired, the employee needs to be fired for a reason that is specifically allowed for in the employment contract. If not, the employee may be able to bring a breach of contract lawsuit.

Were you laid off, ford or terminated unfairly? Contact the San Jose employment lawyers at the Costanzo Law Firm today.




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