replace permanently the terminated employees.
In the instant case the RIF Regulations explicitly assert that surplused employees who are not placed in other positions are "laid-off from the company" and "retain recall rights to position(s) from which surplused for two years from the last day worked in that position." See RIF Regulations 2, 3 (emphasis added). Furthermore, as a practical matter, whether the 18 employees where laid off and subsequently recalled, or simply transferred, they were not replaced.
Where there is a preexisting policy that mandates a "lay off" with clear criteria for recall, the concern that an employer will manipulate employment terminology to circumvent federal requirements is minimized. In the instant case, the existing lay off or reduction in force regulations were properly invoked. As demonstrated by the facts of continuing employment of the 18 by AMR, the lay off and transfer provisions of the RIF Regulations are bona fide; they offer a reasonable likelihood that employment will continue in some fashion.
Application of the preexisting RIF Regulations, under which "employees may be declared surplus as a result for [sic] a need for reduction in force in a specific work unit" was appropriate in the instant case. See RIF Regulations 1. The closure of the Security Department did in fact necessitate a "reduction in force" in that department.
Plaintiff's implication that the RIP Regulations were improperly invoked in an effort to circumvent WARN requirements is unsupported. Lay offs under the RIF Regulations are more than terminations in disguise. The Regulations offer a substantive promise of an employer's good faith effort to transfer or recall employees who are "surplused." There is every indication that AMR sought to continue these employees' association with the company, to the extent that it could, following the retrenchment. According to AMR records and the uncontradicted Hammack affidavit, the 18 employees did not suffer a loss in seniority; none received the payment for accrued vacation time that is normally sent to employees upon termination; and none received the termination information that is sent in the normal course of business to AMR employees whose employment is being terminated. Plaintiffs have neither challenged these aspects of the Hammack affidavit nor offered alternative evidence. Application of the RIP Regulations reflected a bona fide attempt to retain "surplused" workers rather than an attempt to circumvent WARN provisions or other employment regulations. Regardless of whether AMR's actions with respect to the 18 employees constituted a transfer or a temporary lay off with immediate recall, plaintiffs were realistically never in danger of "termination."
Perhaps it could be argued in other contexts that, where the employee's "position" has been eliminated, the "right of recall" promised under the RIF Regulations is meaningless, and that therefore a termination has taken place. The recall policy of AMR, however, suggests that recall rights are based on "job title." RIF Regulations 3 (stating that recall rosters are to be kept by "job title" and are to note "each employee's skills (language, computer training)"). Thus, even after the Security Department closing, other job positions with the same "job title" as those eliminated might have existed elsewhere at AMR and its subsidiaries. At least one "surplused employee" was offered the opportunity to exercise his recall rights, although that opportunity was later withdrawn. Winfield Aff.; Plaintiffs' Cross-Motion for Summary Judgment exh. A (letter from AMR, dated 3/7/94, offering "immediate reemployment in your former classification"). This employee's experience, along with the immediate transfer of the 18 employees subject to the dispute, demonstrates that the RIF Regulations offered more than an empty promise to those employees whose jobs were eliminated upon the Security Department's closing.
In view of AMR's policies regarding "surplused" employees, evidence proffered about the policies' practical applicability and AMR's adherence to them, and AMR's treatment of employees' seniority and vacation pay pursuant to its normal business practices, no "termination" occurred with respect to the 18 employees. At worst, they were at risk of being laid off. Since the letters received by the employees provided for May 31, 1993 to be the last date of continuing employment in the prior position, and the 18 employees were placed in their new positions effective May 29, June 4, June 5, or June 7, 1993 at the latest, any "lay off" experienced was substantially less than the six months required under the statute. Under the circumstances, an "employment loss" sufficient to trigger WARN's notice requirements was not, and cannot, be shown.
IV. SUMMARY JUDGMENT
Summary judgment is appropriate since uncontroverted documents "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). The critical facts are not in dispute. They support the defendant's position. See R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984) ("concrete particulars" must be provided showing a need for trial, quoting SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978)); Cf. Office & Professional Employees Int'l Union v. Sea-Land Serv., Inc., 1991 U.S. Dist. LEXIS 9803, No. 90 CIV 2559, 1991 WL 136036, at *5 (S.D.N.Y. July 18, 1991) ("[The plaintiff's] unsupported allegations of evasion [of WARN's requirements through strategic temporary recall of laid off workers] cannot withstand a motion for summary judgment.").
No genuine issue of material fact exists with respect to whether an employment loss sufficient to trigger WARN's notice requirements occurred. Of the 91 employees employed in the department that was eliminated, 26 were part-time and therefore are excluded from WARN's calculations. The 18 employees whose jobs were eliminated but who were transferred almost instantaneously to other positions at AMR did not experience an employment loss as defined under WARN. The remaining employees whose change in employment status might be cognizable under WARN number fewer than 50. As a matter of law, since any employment loss was short of the threshold amount required to trigger WARN's notice provisions, no statutory violation occurred.
Defendant's motion for summary judgment is granted. Plaintiff's cross motion is denied. The case is dismissed. No costs or disbursements are granted.
Jack B. Weinstein
United States Senior District Judge
Dated: Brooklyn, New York
February 22, 1995
© 1992-2004 VersusLaw Inc.