Copyright (c) 1998 National Employee Rights Institute & Chicago-Kent College of Law
Employee Rights and Employment Policy Journal
ARTICLE: DOWNSIZING - EMPLOYEE RIGHTS OR EMPLOYER PREROGATIVE?
2 Empl. Rts. & Employ. Pol'y J. 1
By Alfred W. Blumrosen, * Ruth G. Blumrosen, ** Marco Carmignani, *** & Thomas Daly ****
Since the early "80s, millions of employees have lost their jobs through downsizing or restructuring. 1 Employers have exercised subjective judgments to discharge employees with a virtual immunity from the panoply of federal and state laws protecting worker's rights. 2 For those downsized, the result has been a virtual resurrection of Wood's rule - the 19th century doctrine that the employer has unlimited discretion with respect to selection of employees, terms and termination of employment. 3
A. The Downsizing Plan
This new era of employer discretion has been achieved through the most sophisticated labor relations document since the collective bargaining agreements of the 1950's - the Downsizing Plan. 4 The Downsizing Plan (Plan) is a technical legal masterpiece which integrates state contract, tort and statutory law and federal laws to form an umbrella for employer discretion. 5
The Plan circumvents a corpus of federal and state law built up over thirty years to protect economic and dignitary interests of workers. It requires those employees to waive their claims under all federal, state and local laws, in order to receive "severance pay." 6 Severance pay has long been considered delayed payment, of money earned while working, to assist employees terminated without fault to make a life adjustment. In downsizing plans, it has become consideration for a waiver of all of the employees' rights in connection with their former employment. 7
The Plan is so massive and complicated - running into more than a hundred pages with large ...
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