Firings, Layoffs Differ Little

Article excerpt

Byline: On the job by Dan Grinfas / Bureau of Labor and Industries For The Register-Guard

Q: Is there a legal difference between the terms "laid off" and "fired"?

A: When you're laid off, you're out of a job, and when you're fired, you're REALLY out of a job. How's that for a legal answer?

In one sense, there's not much difference between the two terms, and whether an employer uses "laid off" or "fired" to describe the employment action is a matter of semantics. But there are some subtle differences, and it depends to some extent on which laws you look at.

Of course, a "firing" or "termination" usually has a worse connotation, and it typically means the action is permanent. On the other hand, some companies who terminate workers may still categorize them as "eligible for rehire" under some circumstances.

A "layoff" is often associated with a restructuring, a reduction in force, or simply a lack of work, and it may or may not have anything to do with the employee's job performance or productivity. Then again, many layoffs are in fact based on such criteria, and many layoffs are permanent.

Employers sometimes take the "easy way out" and label a separation a "layoff" when they're really terminating an employee for poor performance. They may do this to avoid confrontation, documentation, discipline and hurt feelings. Oregon is an employment-at-will state, so at-will employers who use this strategy aren't necessarily breaking the law.

Still, it's a risky approach that may be a recipe for a lawsuit, because the so-called layoff gives the impression that the employee will be returning when the economy recovers or when revenues rise. In fact, the employer may have no intention of ever reinstating the person. When this "laid off" worker - who was never counseled about performance issues - learns that a replacement worker has taken his place, he quickly figures out that he was fired, and he may conclude that the employer had a discriminatory motive.

There are a few legal distinctions between layoffs and terminations. …