DOWNSIZING AND EMPLOYEE RIGHTS

This Article examines how millions of jobs have been lost through the downsizing process in the last decade, with little regard for Title VI I, the ADEA, ERISA, and state contract law. It explains how employers insulate themselves from liability by planning in advance to pay sever ance pay to those who are fired in exchange for waivers of all rights. These waivers have the ''functional effect'' of prospective waivers b ecause they reduce incentives to comply with statutory duties. Recent Supreme Court decisions under federal race, sex and age discrimination laws, as well as ERISA, that have begun to establish a degree of work er protection are examined. This Article concludes that (1) the requir ement of advance information to employees of planned adverse personnel actions is emerging as a fundamental legal principle; (2) the dispara te impact doctrine is applicable to downsizings under the ADEA in conn ection with the 1990 amendment requiring employers to inform workers c oncerning the impact of the downsizing; (3) disclosure of impact is al so required when waivers are requested concerning race, sex and nation al origin. discrimination; (4) downsizing plans should specifically pr otect against discrimination; (5) ERISA preemption should operate only where the federal law substantively regulates employer conduct in a d ownsizing.****.