December 2012 Archives

December 31, 2012

Michigan is now the fourth state to protect employee online privacy

Thumbnail image for facebookbackground.jpgThe newest right-to-work state is also the latest to ban companies from accessing password-protected social media accounts.

On Friday, Michigan Governor Rick Snyder signed House Bill 5523, prohibiting employers and educational institutions from asking applicants, employees and students for passwords and other account information used to access private internet and email accounts, including social networks like Facebook and Twitter.

Here's the skinny.

An employer cannot:

  1. Request an employee or an applicant for employment to grant access to, allow observation of, or disclose information that allows access to or observation of the employee's or applicant's personal internet account.

  2. Discharge, discipline, fail to hire, or otherwise penalize an employee or applicant for employment for failure to grant access to, allow observation of, or disclose information that allows access to or observation of the employee's or applicant's personal internet account.

However, the new law specifically permits an employer to access: (i) employer-provided devices; (ii) business-related online accounts; (iii) employee social-media accounts in connection with certain workplace investigations. Employers can also continue to restrict access to certain websites and monitor employee communications on its network.

Michigan is the fourth state (Maryland, Illinois and California are the others) to pass a law of this type affecting employers.


December 28, 2012

My 5 best posts of 2012, as selected by the world's best readers*

*Do I need a disclaimer? Do I?

What a year for The Employer Handbook in 2012! I'm most pleased that, in our second year of existence, readership more than doubled. Although, sadly, the one 2011 reader I had from Papua New Guinea never returned in 2012. I hope she is ok. Yeah, she's ok.

So, what did my readers enjoy most in 2012? Well, apparently, y'all like Polka music. Why else would this be the most-clicked item on The Employer Handbook? What a strange cultured bunch!

As for actual HR/legal-related content, here were the top five based on total page views:

  1. Legislation introduced to expand FMLA coverage in PA. I originally posted this in June 2011 and the bill never passed. Move on, people. Move on.

  2. Facebook pics of employee boozing at a festival ruin her FMLA claim. This doesn't surprise me at all. I was at SHRM National in '12. I saw what happens when you provide HR "professionals" with access to karaoke and half-priced well drinks. Don't worry, I won't tell. ** Cancels Instagram account **

  3. Ethics charges for two lawyers over Facebook friending a litigant. I'm not so sure that the two lawyers are pleased about this. (Note: I love you. All of you. Keep clicking). Nonetheless, my theory that misery loves company in the legal community is confirmed.

  4. 4 new employment-law bills now pending in Congress. None passed. Yeah, I'm shocked too.

  5. Pepsi and Criminal Background Checks: Beyond the Buzz. This one was a guest post from Janette Levey Frisch. I tried combining chloroform with Pepsi Kona to keep Janette all to myself; however, Janette now blogs at The Emplawyerologist. Make sure to check it out.

So, other than old PA legislation, soda, booze, and farting (Give that one time to breathe, I expect big things), what would you like to hear about in 2013? Let me know in the comments below and I will make all of your dreams come true.

December 27, 2012

It's legal to fire a female employee because of her "irresistible attraction"

Cue music.

Last week, a unanimous Iowa Supreme Court held (here) that it was ok for a male boss to fire a female employee -- a model employee -- out of concern that he would eventually succumb and do things with her that could jeopardize his marriage.

That has to be gender discrimination!

Right?

Well...

The boss replaced the fired female employee with another (presumably less tempting) female. This suggests to me -- as it did the court -- that having the hots for a particular female employee (versus females in general) motivated the firing decision. (Of course, had the actor displayed a pattern of canning female employees because he feared sleeping with them, it may be a different story).

Additionally, although not a focus of the opinion, the same person hired the female employee as fired her. In many courts, the "same-actor" defense can be used to show that if one person does the hiring and the firing -- especially over an abbreviated period, it's unlikely that he is biased against [protected class of hired/fired employee].

Here, the boss -- actually, the boss's wife (she found the text messages) -- wanted the employee gone because her "irresistible attraction" threatened the boss's marriage. Absent sexual harassment, the subsequent adverse employment action is not actionable. Unfair? Yes. But, anti-discrimination laws are not fairness laws. They are only implicated when the employer discriminates based on an employee's protected status; not when an employer treats a particular female employee different than it would other (less alluring) female employees. Absent sexual harassment, that single termination based on a set of feelings towards that particular employee (albeit motivated by the boss's penis), even if unjust, by definition, does not violate the law.

December 26, 2012

Federal employee receives a 5-page written warning for . . . farting?!?

hoofhearted.jpgThe Employer Handbook generally likes to end the year on a classy, high note. Consequently....

The Smoking Gun reports here that, earlier this month, the Social Security Administration issued this 5-page formal reprimand to an employee for his "awful and unpleasant" flatulence.

{As opposed to my ambrosial flatulence. So lovely.}

In fact, the SSA concluded that the pungent poo-stink was so bad, that it created a "hostile work environment" for all co-workers.

{Note: Apparently, the SSA is not familiar with this Minnesota federal court decision, which recognized that farting does not contribute to a hostile work environment. I'll assume that some of my readers may have just learned a thing or two as well...}

Now, you may be thinking to yourself: Could this employee be disabled under the Rehabilitation Act of 1973, such that the SSA would need to afford him a reasonable accommodation? Consider that, while the gas itself would not be a disability, it could be a symptom of an underlying disabling medical condition. Indeed, the warning memo does note that the employee is lactose intolerant. I'm going to assume that lactose intolerance would be considered a disability, because it interferes with one's ability to eat.

So what about a reasonable accommodation? The warning memo notes that the SSA did refer the employee to its Employee Assistance Program for assistance. But that didn't work. Increased ventilation didn't appear to work either. The warning memo notes that when the employee turned on a fan, it would "cause the smell to spread and worsen the air quality." Apparently, the employee also looked into taking Gas-X, but that never materialized into anything, except Hades-level sulfur. Also, discussed were more frequent restroom breaks. But it appears that the employee couldn't contain himself for that long.

What about telecommuting? In certain instances, that may be a reasonable accommodation. If nothing less, that certainly would have improved the air quality at SSA for other employees. However, I'm guessing that the farter's job requirements would not comport with a telecommuting arrangement.

Therefore, it would appear that the only accommodations, if any, that the SSA could have offered would have resulted in undue hardship. And that's not reasonable. Consequently, you might say that the employee was sh*t outta luck.

Now may be a good time to mention that The Employer Handbook likes to end the year with bad puns as well.

Now somebody pull my finger.

And immaturity. Yeah, immaturity.

Image credit: atom.smasher.org, licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License.

December 21, 2012

6 EEOC priorities over the next 4 years and the impact on your business

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Thus far, you've managed to keep your equal-employment-opportunity nose clean. Good for you. In fact, with the economy the way it is, combined with the dwindling resources available to our federal agencies -- including the U.S. Equal Employment Opportunity Commission -- your odds of facing a federal investigation based on a complaint of discrimination or harassment are fairly slim.

But...

On Tuesday, the EEOC announced its Strategic Enforcement Plan. And within that plan, you'll find six areas of EEOC focus over the next four years:

  1. Eliminating barriers in recruitment and hiring;

  2. Protecting immigrant, migrant and other vulnerable workers;

  3. Addressing emerging and developing employment discrimination issues;

  4. Enforcing equal pay laws;

  5. Preserving access to the legal system; and

  6. Preventing harassment through systemic enforcement and targeted outreach.

My read on the plan is this: If one of your employees has a "typical" discrimination or sexual-harassment claim, the EEOC may investigate and not do much more (e.g., litigate the matter in federal court). This is true, especially if your employee has an attorney. The EEOC will view that situation as one in which your employee has access to the courts.

However, if an unrepresented employee (or better yet, employees plural) shows up at the EEOC complaining about you, the EEOC is likely to take an interest. This is especially true if the complaints involve more unique issues like: (a) Americans with Disabilities Act coverage, reasonable accommodation, qualification standards, undue hardship, and direct threat); (b) pregnancy accommodation; or 3) LGBT rights (anything that could form the basis for a sex-stereotyping case).

So what are some ways in which you can remain compliant in 2013 and beyond?

  • Double check to see that similarly-situated employees are being treated equally, especially when it comes to compensation;

  • Update job descriptions and review hiring tests to make sure that everything is job-related; and

  • Schedule some anti-harassment training for your employees, making sure that they know how to alert you to problems in the workplace -- before going to the EEOC -- to allow you to fix them.
December 20, 2012

Swine flu as an ADA disability? What would Ozzy and Sharon say?

"Oy, Sharon! Will you help me out here?"

"Come on, Ozzy! Yellow in the front, brown in ---."

"Bloody hell, Sharon! I'm trying to comprehend this federal court decision from the District of Minnesota."

"Was that the one Judge Schiltz authored?"

"Aye, Sharon."

"So, here's what I don't get. This fella goes to Mexico a few years ago, comes back to the States, and his employer fires him because the company "thinks" he has swine flu. Is that legal? Wouldn't that violate the Americans with Disabilities Act?"

"All that to-do over swine flu was bollocks, Ozzy. Pure rubbish. Turned out to be just a transitory illness; short in duration. That wouldn't qualify as a disability under the ADA."

"What about 'regarded as' disabled? Under the "regarded as" prong, a plaintiff need only prove that he was regarded as having an impairment; he need not prove that the impairment (if he had it) would have limited a major life activity. So, if the company thought this bloke was really sick, isn't that still disability discrimination?"

"No Ozzy. An employee is not 'regarded as' disabled if the impairment that he is regarded as having is both "transitory and minor.'"

"Yeah. Not like that time I bit the head off that bat in '82 at the Veterans Memorial Auditorium in Des Moines, Iowa. I got rabies shots for biting the head off a bat but that`s OK - the bat had to get Ozzy shots."

"Rabies isn't transitory, Ozzy. That, and Warner Brothers knew that you don't f**k with the 'Prince of Darkness.'"

"Aye, Sharon. Aye."

[Note: They never really said this. Well, except the part about the Ozzy shots. That's true.]

December 19, 2012

Pay it forward: HR and Employment-law style

payitforward.jpgMark Toth and ManpowerGroups's The Employment Blawg is hosting this month's Employment Law Blog Carnival: Special Holiday Edition, a collection of 18 blog posts from some of the best employment lawyers on the interwebz. Got questions? They have answers. So be sure to check that out. That's my gift (regifted, I suppose) to you.

Now the pay-it-forward part.

Daniel Schwartz at the Connecticut Employment Law Blog has a series of posts (here, here, and here) on the Newtown shooting tragedy. If any of my readers would like to help out with the relief efforts in CT, Dan has several links in his most recent Newtown post.

December 18, 2012

Does the law require transfers for employees seeking medical treatment?

Thumbnail image for stethoscope.jpgYou have an employee who hurts herself on the job and becomes disabled. Although she recovers to the point where she can perform the essential functions of her position without the need for accommodation, she requests a transfer to another one of your facilities so that she has better access to ongoing medical treatment.

Does the law require you to grant that transfer?

In this recent case (Sanchez v. Vilsack), the Tenth Circuit Court of Appeals ruled that the Rehabilitation Act, which prohibits discrimination in federal employment, and courts interpret like the Americans with Disabilities Act, may require this.

Now, we all should know that federal law requires employers to provide a disabled employee with a reasonable accommodation, if needed, to allow the employee to perform the essential functions of her position. The exception to that rule is if the accommodation would cause undue burden to the employer. Then, the accommodation is not reasonable.

There are many types of reasonable accommodations. Where the employee can no longer perform the essential functions of her job, one such accommodation may include reassignment to a vacant position if the employee is qualified for the job. 

But even if the disabled employee can perform the essential functions of her position, the Sanchez Court opined that the law may require more of employers:

[E]mployers are not relieved of their duty to accommodate when employees are already able to perform the essential functions of the job. Qualified handicapped employees who can perform all job functions may require reasonable accommodation to allow them to (a) enjoy the privileges and benefits of employment equal to those enjoyed by non-handicapped employees or (b) pursue therapy or treatment for their handicaps. In other words, an employer is obligated not to interfere, either through action or inaction, with a handicapped employee's efforts to pursue a normal life.

Does this decision mean that all employers must permit disabled employees to transfer to seek medical treatment? Nope. Remember, if the transfer would cause undue burden to the employer, then it is not reasonable. Just remember that this can be a lofty burden. So be prepared to produce empirical evidence to justify denying the accommodation. Consider documenting transfer requests and the financial impact they have on your business. And don't forget to engage in an interactive dialogue with the employee to determine which, if any, other accommodations may be available and reasonable. Maybe, there is another accommodation that, other than a transfer, than can inure to the benefit of both the employee and the employer.

December 17, 2012

When can an employer require an exempt employee to take unpaid leave?

checkbook.jpgLike most employers, you likely have a workforce comprised of both non-exempt and exempt employees. Under the Fair Labor Standards Act, non-exempt employees who work more than 40 hours in a workweek must be paid OT. Employers don't need to pay OT to exempt employees.

Let's assume that, each year, you provide your workforce with a bank of paid time off. Let's further assume that you implement a policy that mandates that any additional leave be taken in unpaid full-day increments, event if the employee only needs a few hours off. 

Is that policy legal? Or does it violate the FLSA? The answer follows after the jump.

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Continue reading "When can an employer require an exempt employee to take unpaid leave?" »

December 14, 2012

How Employer Words and Actions Can Make FMLA Apply, Even When It Doesn't

guestblogger.jpgToday we have a guest blogger at The Employer Handbook. It's one of my fave employment lawyers from Twitter, Chuck Lawson.

Chuck is a member of the Labor and Employment group at Grant Konvalinka & Harrison, P.C., where he specializes in all phases of the employer-employee relationship, including wage and hour, FMLA, ADA, unemployment compensation, and discrimination/harassment law.

After the jump, Chuck is going to school you on some FMLA pitfalls that can trip up even the best employers -- and how to avoid them (the pitfalls, that is).

(Want to guest blog at The Employer Handbook? Holla at ya boy).

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Continue reading "How Employer Words and Actions Can Make FMLA Apply, Even When It Doesn't" »

December 13, 2012

If your employee did THIS on Facebook, what would you do?

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I did one of these posts a few weeks ago, where I wrote about employees getting sacked for a Facebook post and then offered you -- the employment lawyers and HR pros -- the opportunity to second-guess the termination decision. 

Giving y'all the chance to weigh in nearly crashed my servers. So, let's try it again with a new set of facts. But, be easy on my hardware.

Rhonda Lee is a meteorologist for KTBS-TV. Oh, did I say "is"? I meant "was". She was fired based on two exchanges that occurred on the station's Facebook page:

[Click on the first one if you have difficulty reading it; it links to a larger version]

Lee1.png

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KTBS News Director Randy Bain released a statement that said, "If harsh viewer comments are posted on the station's official website, there is a specific procedure to follow. Ms. Rhonda Lee was let go for repeatedly violating that procedure after being warned multiple times of the consequences if her behavior continued."

Now that you've read the posts, the policy, and the company's position, put on your HR/lawyer hats, and go back in time to before KTBS-TV decided to terminate Ms. Lee. Tell me in the comments below how you would advise the station to proceed.

December 12, 2012

New "Top Jobs for 2013" list will make many of my readers VERY happy

arrowuptrend.jpgGood news for HR professionals!

That, according to this recent poll from CareerBuilder and EMSI, ranking the best jobs for 2013 requiring a bachelor's degree.

Coming in at #5 was "Human Resources, Training and Labor Relations Specialists." The numbers reflect that the profession has added 22,773 jobs since 2010, which represents 5% growth. Matt Ferguson, CEO of CareerBuilder, believes that the study results indicate that "[w]here the U.S. will produce the most jobs in 2013 is likely to follow growth patterns of the last few years."

So, if you are a transitioning human resources professional, hold your head up, and keep plugging away. Hopefully, blue skies lie ahead.

December 11, 2012

Fact or Fiction: Breaks/lunch taken at work may qualify for FMLA

Fact or Fiction?That's right folks. It's time for another edition of "Fact or Fiction" a/k/a "Quick Answers to Quick Questions" a/k/a QATQQ f/k/a "I don't feel like writing a long blog post."

The Family and Medical Leave Act permits employees to take leave on an intermittent basis or to work a reduced schedule under certain circumstances, such as caring for a parent with a serious health condition. Intermittent leave can be days, hours, or even minutes off of work. Indeed, when an employee takes FMLA leave on an intermittent or reduced leave schedule basis, the employer must account for the leave using an increment no greater than the shortest period of time that the employer uses to account for use of other forms of leave provided that it is not greater than one hour and provided further that an employee's FMLA leave entitlement may not be reduced by more than the amount of leave actually taken.

When employees use minutes of intermittent FMLA, it's generally in the form of early dismissals or late arrivals to work. But what about FMLA leave during breaks and lunches, when the employee never actually leaves the office? Can that time be used for intermittent FMLA leave?

According to this recent case, periodic time away from one's desk throughout the work day -- but not out of the office -- is not FMLA leave. The court was "unable to locate a case where 'temporary' FMLA leave was awarded in such a context-where the leave given does not constitute time away from a place of work."

The answer to today's "fact or fiction" is fiction.

December 10, 2012

HO HO NO! Facebook comments get Santa Claus fired...twice!

Original Bad Santa kicks arse

With the National Hockey League season in jeopardy, I imagine that Canadians are a fairly ornery bunch these days.

Even further north, hockey fans too are in turmoil. Reports from the North Pole have Mrs. Claus moping around. Morale amongst Santa's helpers is at an all-time low, causing toy production to drop 20%. And the elf of the shelf just flipped me the bird.

But it appears that no one is taking it harder than jolly old Saint Nick. 

According to this report from Shawn Jeffords at the Toronto Sun, last week, NHL Commissioner Gary Bettman dressed up as a mall Santa at a Toronto Christmas Market told a three-year-old waiting in line to sit on his lap that the Toronto Maple Leafs "suck."

The boy's mother than took to Facebook and put Kris Kringle on full blast:

Then he said, 'Oh, you're wearing a Toronto Maple Leafs tuque, you shouldn't be wearing that, they suck.' At that point, I took my son and told him we should go, Santa isn't being very good today.

The event organizers apologized, via Facebook, and then promptly terminated Santa's employment. 

But, folks, let me tell you. Santa is resilient. He dusted off his resumé, checked the online job boards, and quickly found new employment at a mall in Portland, Maine.

That is until, as The Daily Dot (via Mashable.com) reports here, a mom complained on the mall's Facebook page after Santa allegedly refused to let her six-year-old daughter sit on his lap because she didn't purchase a picture package. Here's a video of mom and daughter sharing this scrooge story. Now, Santa is once again out of a job.

And, rumor has it, he may be filing a national-origin-discrimination Charge with the EEOC.

December 7, 2012

HR testifies that employee firing was FMLA retaliation (you read that right)

fmla.jpegBetter settle the case, right?

Not if you're Flannery Oaks Guest House. Instead, you move for summary judgment and try to get your former employee's FMLA retaliation claim dismissed.

Was Andy Reid or Norv Turner calling that play? 

How do you think it worked out for ole Flannery Oaks? (Hint: it failed miserably). Find out for sure after the jump...

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Continue reading "HR testifies that employee firing was FMLA retaliation (you read that right)" »

December 6, 2012

HR'S 2012 performance review #nextchat

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Yesterday, I spent a fun hour hanging out on Twitter with the folks from SHRM's We Know Next discussing 2012's HR victories and, then, what lies ahead for you good folks in 2013. 

A big thank you to SHRM and to those who were able to join us and participate. ICYMI, after the jump is a full recap of all the action along with the top song on the Billboard pop charts.

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Continue reading "HR'S 2012 performance review #nextchat" »

December 5, 2012

I can't believe you missed these workplace blockbusters, you guys!

hippiesign.jpg

Translation: Recent HR / employment law developments that Meyer missed a/k/a Meyer needs to clear out his folder of bookmarked employment-law items to make room for his dork dorkier Fantasy Baseball bookmarks. Pitchers and catchers report in just over two months.

  1. More courts weigh in on social-media discovery issues. "Good news. My doctor says that the itching and redness should subside in a few days." Recent court decisions (here and here) roadmap how you can access this and other Facebook status updates from your former employee who is now suing you. Have fun with that.

  2. Other social-media-related litigation. A firefighter, allegedly terminated for critical Facebook comments, has settled his wrongful discharge claim (here). Facebook posts doom another employee's FMLA claims (here). The National Labor Relations Board crapped all over another employer's social-media policy (here). Choking back laughter (at least that's how I envision it), a Massachusetts Court denied another (the first ever?) hair salon's claim that a former stylist's job posting on Facebook violated a non-solicitation agreement agreement (here).

  3. New study released on how companies are addressing employee social media use. Hey, as long as no one cuts me off from The Superficial, it's all good. Wait, that's not in the Proskauer report (here), is it?

  4. And in non-social-media-related news, the EEOC releases its Performance and Accountability Report. You can either spend hours reading it (here), or, like me, just use Stephanie Thomas's killer infographic (here). Stephanie - You need to show me how to make those things! Love it!

  5. Got questions about ADA confidentiality (who doesn't)? The Seventh Circuit has answers (here). 

Image credit: atom.smasher.org, licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License.

December 4, 2012

EEOC: Bar claimed males like their Sunday servers sans embryo

Sports Bar*** Googles "sans," wipes brow while sighing in relief  ***

I'm not aware of any studies or surveys that the Sandbar Mexican Grill conducted on this subject. Instead, I imagine something like this:

Sandbar Customer: "Two please."

Sandbar Manager:
 "Sure. But before I seat you, do you see that bartender over there? She's *gasp* pregnant. That's why we have her behind the bar, instead of in your face distracting you from watching the Arizona Cardinals, losers of eight in a row. Given that it's Football Sunday, we even raised the bar an extra foot just in case her fetus is sitting high. And, as an extra precaution, we have a curtain between the bar and the employee bathroom so that you won't have to avert your eyes should nature call. We used to have a bucket behind the bar for her, but our lawyers frowned on that. Really, what am I saying is, should we just fire her? Uh, fellas?!? Come back! I'll make the other servers pee on sticks. Don't run away! I assure you, it's EPT; not that ClearBlue crap! 
Come one guys! Half-price Vodka/Rock Stars! Fellas! 

[Dramatization: Never occurred. Ever.]

Anyway, I gather that when the EEOC sued the Sandbar for pregnancy discrimination on behalf of a waitress whom the Sandbar had fired, the EEOC wasn't all that concerned with anecdotal or scientific evidence concerning customer preferences. That's the sense I got from this EEOC press release. Rather, the EEOC believed that the waitress was fired because she was pregnant -- as opposed to the Sandbar having a legitimate business reason.

So, is it legal to fire a female bartender at a sports bar because customers supposedly prefer their waitresses without baby bumps? Probably not, as we know from the Handbook's transparent attempt to boost SEO hard-hitting two-part exposé covering the Wild Beaver Saloon

But, a definitive answer will have to wait for another day. Wisely, the Sandbar, where "Shiturday" is just a dream, but kids eat free on Monday, settled with the EEOC.

December 3, 2012

"Younger people are the future" comment creates age-bias claim

youngershmunger.jpgHey Employers!

Want to guarantee yourself a jury trial in an age-discrimination case? Just mention the word "younger" to any employee age forty or above right around the time you fire him.

[Editor's Note: Calling that employee an "old man," "old fart," "pops," and "grandpa" will also do the trick -- except, of course, in Texas]

*** Shakes head, orders brisket/rib combo ***

In Brazil v. Volkert, Inc., the plaintiff claimed that, just before he was terminated, one of the Assistant Vice Presidents told him, "Younger people are the future of the company." The company admitted that this comment was made, but claimed that it fired the plaintiff because work had dried up and the plaintiff refused a transfer.

Volkert moved for summary judgment. In hindsight, they should have spent that time preparing for trial, eh Middle District of Alabama?

In Mora v. Jackson Memorial Foundation, Inc, the Eleventh Circuit vacated the District Court's entry of summary judgment for the defendant because ... [the defendant] told the plaintiff when he was firing her that he "need[ed] someone younger I can pay less," but claimed that he fired the plaintiff solely for poor job performance. ... Similarly, in this case, Mrs. Harmening's statements to Mr. Brazil provide "sufficient evidence of a discriminatory motive which was the 'but for' cause of Plaintiff's dismissal."

Employers, I don't care how much sound rationale and pages of documentation you have to support a termination decision. If a decisionmaker admits using the word "young," "younger," "youngest," or "youth," to the plaintiff at or just before the firing, the employer loses summary judgment on the subsequent age-discrimination claim nearly every time.

Image credit: atom.smasher.org, licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License.