Expert Advice for Florida Employers Who Want to Avoid Legal Disasters During Layoffs
Layoffs are one of the most legally sensitive actions an employer can take and with headlines announcing new workforce reductions almost daily, HR leaders across Florida are feeling the pressure. The public sector is already experiencing cuts, and as our last article How Florida Employers Can Read the Early Signs of Workforce Change highlighted, Senior Economist Stephen Mallory warned that the private sector is likely to follow. Because both sectors operate hand-in-hand, the ripple effect is inevitable.
At a time when many HR executives suddenly find themselves responsible for planning and executing layoffs, I wanted to offer practical, legally sound guidance on what to do once your organization has decided that a reduction in force will occur.
In this article, we break down:
The most common legal mistakes companies make during layoffs
What HR professionals should look for when reviewing layoff-related legal documents
The legal do’s and don’ts during offboarding
When layoffs are mishandled or lack proper oversight, even well-intentioned restructuring plans can quickly spiral into discrimination claims, retaliation allegations, wage-and-hour disputes, unfair labor practice charges, or costly settlements. These missteps rarely happen because HR leaders don't care, they happen because the legal framework surrounding reductions in force is far more complex than most organizations realize.
To help cut through that confusion and give HR executives a clear understanding of the biggest legal risks (and how to avoid them), I spoke with employment attorney Denise Mutamba, a respected labor and employment lawyer based in West Palm Beach.
Denise represents both employees and businesses across Florida, advising on disciplinary actions, termination decisions, wage and hour compliance, collective bargaining issues, unfair labor practices, and responses to EEOC and Florida Commission on Human Relations complaints. She is the past president of the F. Malcolm Cunningham Sr. Bar Association, a former representative of the Young Lawyers Division of the Florida Bar Board of Governors, and co-chair of the Palm Beach County Bar Association’s Bench Bar Committee. She is admitted to practice in all Florida county and circuit courts, every federal district court in the state, and even the Supreme Court of the United States.
Her daily work gives her a front-row seat to how layoffs go wrong: where selection criteria fall apart, how good intentions can result in disparate impact, how OWBPA timelines get overlooked, and how small documentation gaps turn into massive liability.
Because Denise works daily at the intersection of compliance, human behavior, and organizational risk, she understands exactly where even well-meaning companies stumble during layoffs. Her experience makes her one of the most trusted voices for HR executives navigating these challenges.
Here’s what she shared when we sat down to talk through the biggest legal risks and how to avoid them.
Interview
What are the very first legal steps HR should take before notifying employees?
Denise: The first thing HR needs to do is look closely at who is being considered for the layoff. You need to analyze your workforce population so that once legal gets involved, you both understand which laws apply and how to avoid violating anyone’s rights.
Everyone talks about the WARN Act because it applies to so many industries, but that’s just one part of the picture. You also need to look at discrimination laws. For example, if you look at your draft list and 80% of the impacted employees are women, yet women only make up 30% of your workforce, that’s a red flag. The same goes for employees who are 40 and over; there are special rules around how they’re notified, how much time they get to consider severance, and what must be included in those agreements.
If you’re offering severance or other services, those offerings must be equitable across the employee groups you’re laying off. So before you notify anyone, step one is: Analyze your list, understand who’s impacted, and get legal involved early.
If the roles selected happen to be held mostly by women, what should HR do?
Denise: If there is a legitimate business reason why mostly women are being impacted for example, the roles themselves are genuinely no longer needed, you must document that thoroughly.
I always advise my clients:
Create a list of every person you propose to lay off and the legitimate, non-discriminatory business reason they’re included.
Employees often assume they were targeted for personal reasons, not business ones. Your documentation must clearly show otherwise.
Is there any criteria you recommend when identifying who to lay off?
Denise: Yes. Start broad, then narrow.
Evaluate departments and determine which positions, not people, need to be eliminated.
Document why those positions need to go.
Is it financial?
Is it because AI has reduced the need for that role?
Avoid criteria that trigger age discrimination.
For example, choosing to lay off everyone making $90,000+ may seem neutral, but if the only people making that salary are long-tenured workers over 40, that creates a disparate impact.Review internal policies.
Union contracts often dictate how layoffs and callbacks must occur.
C-suite employment agreements often specify what must be paid if termination is “without cause.”
Make sure the company can meet its contractual obligations to anyone with an employment agreement.
Download Layoff Decision-making Checklist
The Restructuring & Layoff Decision-Making Checklist included in this article is not created by or endorsed by Denise Mutamba. These resources are provided for general guidance only. Please consult with qualified legal counsel before using or relying on any template or checklist.
When should HR consult legal counsel?
Denise: As soon as you know a layoff is being considered. Bring legal in early so they can warn you if you’re heading down a risky path.
Employment lawyers are trained to spot both intentional and unintentional discrimination. Disparate impact, non-intentional discrimination, is a strict liability area. The law doesn’t care whether you meant to do it; if the numbers show discrimination, you’re on the hook. Early legal involvement reduces that risk.
What documentation should be initiated immediately?
Denise: Once you confirm the need for a RIF (Reduction in Workforce):
Prepare communication for the workforce.
Even employees not being laid off will feel fear and uncertainty. You want to reassure them and honor the people who have contributed to the company.Document your selection reasoning.
Whether you create it internally or through a transition expert like your company, keep the matrix or notes showing legitimate business reasons.Prepare WARN notices if thresholds are triggered.
You must give 60-day notice or face penalties.Send two notices not one.
A human, empathetic notice from leadership.
A legal, CYA notice covering compliance.
Create a timeline—what notices go out, when, and to whom.
This protects the company if litigation arises.
Download WARN Notice Template
The template WARN Notice letter included in this article is not created by or endorsed by Denise Mutamba. These resources are provided for general guidance only. Please consult with qualified legal counsel before using or relying on any template or checklist.
What are the most common mistakes companies make?
Denise:
Failing to meet WARN Act requirements.
Not documenting selection criteria, which leads to nuisance lawsuits.
Mishandling employees 40 and over under OWBPA (part of the ADEA).
21-day consideration period for individual terminations
45-day period for group layoffs
Plus a 7-day revocation period after they sign
Offering severance but failing to include the required OWBPA language.
What you say verbally must match the written agreement.Making overly optimistic promises (“We’ll bring you back first!”).
This creates legal risk if the callback group ends up skewed toward a specific gender, race, or age.Seemingly retaliating against someone who recently complained of discrimination or other unlawful conduct.
If someone recently complained about discrimination, should HR avoid laying them off?
Denise: You shouldn’t avoid it just because they complained.
You should avoid it unless you have a clear, objective, documented, non-discriminatory reason that you applied consistently to everyone.
Poor performance over several review cycles?
Not meeting expectations while higher performers were retained?
Those are valid reasons.
But if they are a strong performer and they recently complained, it can look like retaliation even if the layoff is legitimate.
Denise provides examples of cases where employers tried to hide retaliation inside a RIF, and those cases often result in significant liability.
What should HR look for when reviewing legal documents related to layoffs?
Denise: You don’t have to draft them, but you should know what they say. Key documents include:
Union contracts
These outline layoff order (usually seniority) and how “working out of class” must be compensated—something companies often overlook.Employment agreements
Determine whether the termination is “for cause” or “without cause,” and what severance must be paid.Offer letters
Make sure there are no accidental promises of guaranteed employment.State and local requirements
Some states require that employees be given the reason for their termination.Department Of Labor fact sheets
Great quick guides, especially for executives unfamiliar with the process.
Can you explain key legal terms HR professionals will see in layoff documents?
Denise: Yes, these commonly appear in severance or separation agreements:
Non-disparagement- Prevents the employee from making statements that could damage the company’s reputation.
Non-disclosure- Stops the employee from disclosing the agreement, or in some cases, confidential things they learned while working.
Confidentiality- Protects proprietary information—trade secrets, client lists, processes, etc.
Non-compete- Restricts the employee from working for competing businesses for a specific time and geographic area.
Florida’s new Choice Act is reshaping how enforceable these are.
Non-solicitation
Comes in two forms:
Not soliciting employees to leave
Not soliciting customers or clients
Consideration and consideration period (OWBPA)
The money or benefit offered in exchange for signing the release
The time the employee gets to review the agreement
21 days or 45 days for employees 40+
7-day revocation period after signing
Employees not covered under the OWBPA typically get 7 days total
Some states require that the consideration be a specific minimum amount.
Do you recommend that companies offer severance packages that comply with OWBPA requirements so employees 40 and older can legally waive their rights?
Denise: Yes, I do.
And the reason is simple: severance agreements almost always include a release of claims not just age discrimination claims under the ADEA, but a whole list of 15 to 20 different types of claims. That can include Title VII, the Americans with Disabilities Act, and, at least here in Florida, even certain potential workers’ compensation-related claims or aspects of whistleblower laws.
So as counsel to an employer, I absolutely recommend offering severance that meets OWBPA requirements, because those requirements ensure that the release is enforceable. We want to walk away knowing that the employee has knowingly and voluntarily waived their right to sue the company for those specific claims. That signed release gives everyone peace of mind and reduces the risk of future litigation.
But here’s where companies sometimes get confused: What actually counts as “consideration” meaning, what valuable thing are you giving the employee in exchange for that release of rights?
Denise: Under Florida law, the consideration is most often money. But above all consideration must be something the employee is not already entitled to.
For example:
If you lay someone off on a Friday and their next paycheck is due in two weeks. You cannot use that paycheck as their severance. They’ve already earned it. It doesn’t count.
You must give them something additional typically:
At least two weeks of severance pay, but a month or more is more common for it to clearly qualify as “something of value.”
A recommendation letter does not rise to the level of consideration. That’s not considered valuable enough under the law. The employee must receive actual monetary compensation that they were not already owed.
Layoffs are never easy, but with the right preparation, clear documentation, and early involvement of legal counsel, HR leaders can guide their organizations through transitions respectfully, compliantly, and confidently.
Layoffs are never easy. Not for leadership, not for HR, and certainly not for the employees whose lives are affected. But as Denise Mutamba emphasized throughout our conversation, the way a company prepares, communicates, and documents its decisions can make all the difference. By approaching workforce reductions with transparency, compassion, and compliance, leaders can reduce risk, maintain trust, and support smoother transitions. And with the right tools and expert partnerships, even the most difficult moments can be handled with professionalism and dignity.
