Recently, there has been a lot of talk about private sector reductions in force, or “RIFs.” Layoffs, reorganizations, restructuring efforts, and downsizing plans are currently underway at many private companies across the country. These efforts cause anxiety for current employees and can be devastating for those affected. But what is a RIF, and what rights do employees have? This article will discuss corporate RIFs that are discriminatory or otherwise do not comply with federal law, and what you can do if you’ve been affected by an unlawful RIF.
What is a RIF?
Typically, a reduction in force, or a RIF, involves terminating or downgrading employees for any number of reasons, including saving money, consolidating redundant roles, and streamlining company processes. While a RIF can be a legitimate business practice, it may also be a way for companies to disguise discrimination, retaliation and other unlawful employment practices. To protect workers, Congress has determined that employers—including private companies—must follow certain rules and avoid discriminatory practices when preparing for and implementing RIFs.
Does the law protect employees in a RIF?
There are two federal statutes that specifically govern mass layoffs. The first is the Older Workers Benefit Protection Act of 1990, or the OWBPA. The second is the Worker Adjustment and Retraining Notification Act of 1988, or the WARN Act.
Older Workers Benefit Protection Act (OWBPA)
The OWBPA amended the Age Discrimination in Employment Act (ADEA) of 1967. The OWBP’s purpose is to protect workers age 40 or older, who may be more vulnerable to unfair layoffs and other employment actions. The OWBPA prohibits covered employers from (1) targeting covered workers when undertaking staff reductions; (2) failing to follow certain procedures when asking covered workers to waive their right to bring an age discrimination claim under the ADEA; and (3) using an employee’s age as the basis for denying certain benefits.
During a RIF, many companies offer employers severance pay, continued benefits, and/or other post-termination benefits in exchange for signing a release agreeing not to sue the company. The OWBPA imposes certain requirements to ensure that agreements to waive age discrimination claims are knowing and voluntary. For example, the agreement must be written in clear and understandable language, encourage the employee to consult an attorney before signing, give the employee at least 21 days (or 45 days, in the case of a group layoff) to consider the agreement before signing, and allow the employee to revoke their signature up to seven days after signing.
The ADEA and OWBPA apply to employers with 20 or more total employees. If you work at a company that employs at least 20 people, and you are at least 40 , you have important rights under the OWBPA.
Worker Adjustment and Retraining Notification Act (WARN Act)
The WARN Act is a federal law that requires employers to provide advance notice to workers and communities before implementing large-scale layoffs or plant closings. The primary goal of the WARN Act is to give employees, their families, and communities time to prepare for job losses and seek retraining and new employment opportunities.
Under the WARN Act, employers with 100 or more employees must generally provide 60 calendar days’ notice of a plant closing or mass layoff to affected workers, their representatives (e.g., unions), and state and local government officials. Employers who violate the WARN Act can be liable for backpay and benefits for each day of the violation (up to 60 days), in addition to civil fines and penalties.
While the U.S. Department of Labor (DOL) enforces the WARN Act, it does not have the authority to seek damages for individual workers. Workers may, however, recover monetary compensation through private lawsuits.
Can a company use a RIF to discriminate?
Another instance in which a RIF may be unlawful is when a company uses it to discriminate against certain employees based on a protected characteristic (e.g., age, disability, national origin, race, religion, sex). Discriminatory RIFs take two forms —disparate treatment cases (involving one individual), and disparate impact cases (involving many individuals with the same legal claim). The two main differences between disparate impact and disparate treatment cases are: (1) the number of employees involved, and (2) whether the employees have to prove that the employer intentionally discriminated against them.
Disparate Treatment Cases
Disparate treatment cases typically involve only one plaintiff alleging that a company intentionally discriminated against them. In the context of a RIF, companies may or may not use performance as a metric to determine who to retain and who to lay off.
There are a number of ways to prove a disparate treatment RIF claim. For example, a plaintiff may show that the company retained employees with comparatively worse performance records.[1] They may show that the company only decided to include them in the RIF very shortly after learning that they are pregnant or have a disability. A plaintiff may also win their case by showing that the employer’s supposed reason for conducting the RIF is false. For example, say a company tells a South Asian employee that it is eliminating her position. That employee may succeed in a race and/or national origin discrimination claim by showing that, after laying her off, the company hired a less experienced white person to fill her role. In one District of Columbia case, the company terminated the plaintiff’s employment as part of a company-wide restructuring effort. The employer claimed it eliminated the plaintiff’s position for budgetary reasons. However, immediately after firing her, the company hired another person for a functionally identical role with a different title.[2]
Courts have held that, in the context of a RIF, a plaintiff can prove discrimination by showing that the employer did not treat a protected characteristic—age, race, pregnancy, disability, gender, etc.— in a neutral manner.[3] In one case, an employee showed that the employer illegally considered her age in deciding to include her in a RIF. A company executive asked a staff member to prepare a memorandum that listed employees’ names, positions, seniority, utilization rates, and dates of birth. The company used the memo to decide who to separate from employment. In this case, the court could infer that age was a non-neutral factor.[4]
A 54-year-old woman recently filed a lawsuit against DirecTV for allegedly using a RIF to target older employees and women. The company eliminated 10 positions, eight of which were held by older employees, including the plaintiff. About a month later, DirecTV created a new role that “substantially overlapped” with the plaintiff’s previous duties. The company hired a younger male candidate for the job. Additionally, the company retained younger males with worse performance records than the plaintiff and other older employees separated in the RIF. The case is pending in federal district court in Georgia.[5]
Disparate Impact Cases
Disparate impact cases typically involve several plaintiffs and may take the form of a class action lawsuit. In these cases, plaintiffs allege that a company engaged in a business practice that had a disparate impact on a protected class of workers (e.g., women, Black Americans, people with disabilities). Disparate impact plaintiffs do not have to show that the employer intentionally discriminated based on a protected characteristic (e.g., age, disability, national origin, race, religion, sex). Rather, they need only to show that the practice disproportionately affected them.
When faced with a disparate impact case, the employer can respond by showing that it acted based on a legitimate business need that it could not meet using less discriminatory means. For instance, a group of plaintiffs with disabilities that prevent them from running sues a company that provides security guards for a high-end shopping mall. The company could likely defeat the claim by showing a business need to hire guards who can run after and apprehend shoplifters.
On the other hand, consider a restaurant’s decision to lay off servers who cannot lift 200 pounds. Although the servers never have to lift more than 50 pounds, the employer imposed the requirement to avoid workplace injuries. Even if the restaurant acted for a nondiscriminatory reason, the policy and the resulting layoff are likely illegal if the lifting requirement is unnecessary, and it tends to exclude women.
Should I talk to an employment attorney about a RIF?
Companies must comply with federal and state worker protections when implementing reductions in force. If your employer gave you notice of a RIF, offered you a “buy out,” or asked you to sign a contract to waive your rights in exchange for severance or post-termination benefits, an experienced employment attorney can help you understand your rights. If you have questions about a reduction in force, Alan Lescht and Associates, P.C., can help. Our attorneys represent federal government employees around the world, as well as private-sector and state and local government employees in Washington, DC, Maryland, and northern Virginia. We provide experienced legal representation in cases involving termination of employment and other employment-related matters.
[1] Stokes v. Westinghouse Savannah River Co., 206 F.3d 420 (4th Cir. 2000).
[2] Davis v. D.C., 925 F.3d 1240 (D.C. Cir. 2019).
[3] Trigiani v. New Peoples Bank, Inc., 599 F. Supp. 3d 372. (W.D. Va. 2022); Marlow v. Chesterfield Cnty. Sch. Bd., 749 F. Supp. 2d 417 (E.D. Va. 2010).
[4] Herman v. Nat’l Broad. Co., 744 F.2d 604 (7th Cir. 1984).
[5] Sasser v. DirecTV, LLC, No. 1:25-cv-02433 (N.D. Ga. May 1, 2025).
