Two recent cases are of interest, but do not require any significant discussion.

Counting Laid-off Employees. The 8th Circuit recently had an opportunity to look at what employees you count for purposes of whether the aggregate number of employees laid off is 50 or more, triggering the 60-day notice requirement of a "mass lay-off" under the Workers Adjustment and Retraining Notification Act (WARN). In the case at hand, more than 100 replacement workers for strikers were not counted when they were replaced by striking workers when they returned to work, making the total number of lay-offs well less than 50. The Court logically concluded that it is the net loss in employment that is relevant. One needs to look at which employees were replaced as well as those who were terminated. Sanders v. Kohler Co. (8th Cir. 2011).

Court of Appeals Affirms District Court RIF Case. Affirming a ruling of U. S. District Court Judge David Doty, the 8th Circuit Court of Appeals found that there was no age discrimination in a Reduction in Force (RIF) situation where the employer had laid off certain employees that had positive prior performance reviews and substantial length of service. Such employees, however, were not the most adept employees in using the current machines for manufacturing molds (CNC) in the automotive, medical, consumer product and computer industries. When they were first employed, they were working with molds done manually. The ranking of employees for the RIF had been based on several factors, including the CNC machine proficiency, general mold-making efficiency and three managers' own observation of each employee's work. All managers had agreed that the trio laid off were the ones to be laid off. The Court therefore rejected the contention that age discrimination was shown if the employer did not base its decision on prior performance reviews and length of service. Rahlf v. Moe-Tech Corp. (8th Cir. 2011).