I was going to blame the tardiness of today’s post on technical difficulties. Except, the only thing that was technically difficult about it was trying to muster the energy to blog last night after spending four hours in the sun with my 6-year-old at the Eagles first preseason game. I’m happy to report that the Eagles won, and, to the delight of the intoxicated masses who hung around in the fourth quarter — most everyone but me and my son — Tim Tebow scored a touchdown.
But, this recent federal-court opinion I read last night. The one about an employee with Attention Deficit Disorder who was fired after discussing vaginal massages with a co-worker (even Tyrion Lannister would blush) restores my confidence in my chosen profession.
Rather than just walk away, why did this employee claim violations of various federal employment laws? Because the blog gods are good, my friends.
In a world, where an employee cannot prove age discrimination after getting fired for playing golf during his medical leave, comes the story of a pharmacist *** dramatic pause *** who wouldn’t give flu shots. While we wait for Hollywood to greenlight this movie — I’m thinking Gary Oldman as the pharmacist and Blossom‘s Jenna von Oy as the customer — you’ll just have to settle for a short blog post about the age discrimination lawsuit that ensued after the pharmacist was fired.
As detailed in this recent Pennsylvania federal court opinion, a drug store decided to require that its pharmacists immunize customers upon request. The plaintiff, a pharmacist, was morally opposed to administering the flu vaccine because a close friend of his had contracted Guillain-Barre Syndrome after receiving a flu vaccine. The drug store didn’t doubt the sincerity of the plaintiff’s beliefs. Nonetheless, it fired him because he refused to immunize customers, which was an essential part of his job. Continue reading
Whatcha doin’ two weeks from today?
Want to grab some breakfast with me? Maybe hear about what’s hot at the EEOC and get a legal roadmap for managing the aging workforce?
In you’re in the Philadelphia area and would like to learn more about these topics, then come on down to our offices on Thursday, April 24 at 8:30 AM for a free presentation with a complimentary continental breakfast. Lawyers can get CLE. HR credits will also be offered.
The only bad news is that you’ll have to hear me flap my gums for an hour about best practices to avoid becoming an EEOC target. And since I can’t seem to blog my way out of a paper bag, you can imagine how (in)articulate I’ll be. Fortunately, my co-presenter from the EEOC, Mary Tiernan, will rock thy world.
Plus, my Dilworth Paxson colleagues will school you on the legal issues of which you should be aware when dealing with your older employees.
If you are interested in attending, click here for more details and to RSVP.
Mention this blog and I’ll get you an extra pat of butter to go with your continental breakfast.
After all, I take care of my VIPs.
You’re about to have a reduction in force and you’re going to offer a severance package to those effected: one week of salary for every year of service in exchange of a full release of all claims. If one or more employees affected by the reduction in force is 40 years of age or older, you’d better make sure that your release language complies with the the Age Discrimination in Employment Act (“ADEA”), as amended by the Older Workers Benefit Protection Act (“OWBPA”). Unlike other general releases, by statute, an ADEA/OWBPA release must have certain required elements for it to be effective.
One employer, in this recent case, learned the hard way. The employer RIFed the plaintiffs, but failed to inform them “about the group of employees who were being terminated as a result of the reorganization or about employees who were not selected for termination,” as the law requires. Consequently, the age discrimination release that the plaintiff signed wasn’t worth the paper it was printed on.
Kinda like this blog.
If you are going to lay off anyone over the age of 40, to obtain a release of potential age discrimination claims, you must obtain a knowing and voluntary waiver. This means, at a minimum, your release must include the following six elements:
- it must be easy to understand;
- it must refer to claims under the ADEA/OWBPA
- the employee cannot waive rights or claims that may arise after the date the waiver is executed;
- the employee waives rights or claims only in exchange for consideration in addition to anything of value to which the individual already is entitled (i.e., you have to incent the employee to agree to the release);
- the employee is advised in writing to consult with an attorney prior to executing the agreement; and
- the employee has at least 21 days (45 days for a RIF) within which to consider the agreement, and 7 days after signing the agreement in which to revoke it.
Plus, in a RIF situation, the employer is required to provide the following information to the
affected employees: (a) any class, unit, or group of individuals covered by such RIF, any eligibility factors for such RIF, and any time limits applicable to such RIF; and (b) the job titles and ages of all individuals eligible or selected for the RIF, and the ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the RIF.
Unless, you’ve done this several times before, consider engaging an employment lawyer to walk you through the process. Otherwise, that severance you pay may be used to subsidize a subsequent age discrimination claim against your company.
Yesterday, our guest blogger offered three tips for successful onboarding.
Unable to match that, today, I have a less than successful way to encourage attrition — unless of course you like defending age discrimination claims.
A federal court has permitted a plaintiff’s claims that his ex-employer created a age-based hostile work environment to proceed to trial. And, get a load of the supervisor stupidity:
According to this recent federal court opinion, the plaintiff alleged that his supervisor “constantly called him ‘old man,’ asked him when he was going to retire so that he could replace him with ‘young blood,'” and told him, “I hope the swine flu virus comes through here and gets rid of you old timers.”
When the plaintiff sought clarification as to whether the supervisor’s swine flu comment was meant for him, the supervisor replied, “Yes, you got that right.”
So, what do you think? Hostile work environment? Maybe so, according to a NY federal court, reasoning that a jury could find that the retirement and the swine flu comments, together with the calling the plaintiff “old man” every day, evidence persistent age-based animus.
Here’s what I think. I think that with supervisors like this, I’ll be gainfully employed for a long time.
Under federal law, the bar is set higher for proving age discrimination, as opposed to other forms of unlawful discrimination based on protected classes such as race, gender, or disability.
While difficult to prove, a recent article from The New York Times suggests that age discrimination in the workplace may be more common than we realize.
More on this after the jump…