The Employer Handbook Blog

If the movie "Office Space" has taught me anything, it's to wear 37 pieces of flair to work -- do more than the bare minimum -- and to use a cover sheet with my TPS reports.

And never mess with a man's stapler. That too. Especially when you're also moving the man's desk four times and sending him to the basement. Because that could be age discrimination.

No, seriously. I was reading this decision from the United States District Court for the Eastern District of Pennsylvania. It involves claim of age discrimination where, the over-40 plaintiff claimed that he was "functionally replaced" by an employee who was substantially younger than him.

Functionally replaced?!? Here's how the court described it:

Plaintiff contests Defendant's argument, citing to the following evidence that he was functionally replaced: White received a pay raise; White was attending meetings and giving advice in areas that were within the job responsibilities of Plaintiff; White was performing tasks that were usually performed by Plaintiff; Defendant was trying to move White into a "nicer and more well placed office" and move Plaintiff to a smaller office in the basement of the facility; and, the deposition testimony of Art Fastman, the Executive Director of the facility and Plaintiff's superior, which seemingly supports his argument that he was replaced by White. In light of these allegations, we find that Plaintiff has adequately presented evidence to infer at the summary judgment stage that he was functionally replaced by a substantially younger employee (White).

Dudes! They moved him to the friggin' basement! They gave him the Milton!

Ultimately, the plaintiff was able to show that the manner in which he was treated compared to White, plus the timing of the plaintiff's termination (he had previously complained to management about age discrimination) showed discriminatory animus. Consequently, he was able to defeat the defendant's motion for summary judgment and his age discrimination claims now proceed to trial.

It's Friday. So, rather than leave you with a takeaway from this case, let's go with a SFW version of the printer beatdown scene. Classic!

And make sure to leave a few minutes early today. Just sayin'.

What could go wrong when the boss's son asks that question of, David, a nearly-40-year employee? Oh, right, David got laid off a week later.

Age discrimination? Well, let's see...

We know that when an employer inquires about an employee's retirement plans -- without bringing up age -- it should be able to avoid liability. But, repeated inquiries about a plaintiff's intention to retire could suggest an age-related impetus for his eventual firing.

What about one retirement question + one age reference + adverse employment action one week later?

According to a Mississippi federal court "C'mon man!," maybe:

First, the comment specifically referenced Hawthorne's age and was therefore age related. Second, the comment preceded Hawthorne's termination by one week, making it sufficiently proximate in time to the termination. Third, Allen Fielder, the company's vice-president, wrote and signed the termination notice that ended Hawthorne's employment just one week after making the comment about Hawthorne's age, and therefore had authority over the employment decision. Finally, a reference to retirement at Hawthorne's age is related to his termination, given that the termination immediately followed Hawthorne's refusal to agree to retire.

Easy lesson here: if you plan to let some retire on their own timetable, you can ask them for that timetable to plan for the transition. However, if you plan to lay off an older employee, best not to ask them about their retirement plans immediately beforehand.

From the blog that brought you the classy September 2011 post, "This old mother****** may just have an age discrimination claim," comes a story of a woman whom her former employer **cough** affectionately **cough** referred to as "Old Rose."

On other occasions, the plaintiff Rosemary Marsh was told, "you're slipping, you're getting old." Another time, she was asked if she was "too old to get down there" when she bent down to replace paper in the photocopier. And when the company eventually fired Ms. Marsh -- you had to figure that was coming, right? -- she was allegedly told, "I think you're just getting a little too old for your job."

Sounds like the makings of a good age discrimination claim. Well, not in the Sixth Circuit Court of Appeals. No ma'am:

The first three alleged statements were not made in connection with a decision to fire Marsh. At the most, these statements show only that Horn felt that Marsh was an elderly individual and that some stage of old age was correlated with a decrease in job performance. To hold that age was the but-for cause of Marsh's termination, a factfinder would still have to infer from these statements that Horn's supposed disdain for the elderly led her to fire Marsh. Thus, these statements do not constitute direct evidence of age discrimination.

Hold up there one sec. I read in the opinion that the defendant claimed that Ms. Marsh was a poor performer. But, Ms. Marsh claims they freaking told her, "I think you're just getting a little too old for your job." I'm sensing pretext here, amirite?

Finally, Marsh asserts that Horn's alleged age-related statements, discussed above, demonstrate that AERC of Michigan's proposed reasons for her termination are a mere pretext used to mask age discrimination....Marsh cannot demonstrate that these alleged comments were made by a decision-maker or that the individuals with the power to fire her harbored any discriminatory animus. Thus, the alleged statements of an individual with no authority to fire Marsh cannot demonstrate that AERC of Michigan considered Marsh's age when firing her, much less that AERC of Michigan's espoused reasons were pretextual and that age was actually the but-for cause of Marsh's termination.

The case is Marsh v. Associated Estates Realty Corp.

Sorry for the late post gang. Rough night last night.

Today, I'm punting the ball over to my blogging buddy Phil Miles at Lawffice Space who has the scoop on a new age-discrimination matter that the Supreme Court has agreed to address. You can read Phil's post here.

Hey 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.

Documentation is good; smoking-gun emails from the HR Manager not so much.

After the jump, I've got a few doozies which now have a financial institution going to trial on a former employee's age-discrimination and Family and Medical Leave Act claims.

Continue reading "HR Manager emails bolster employee's ADEA and FMLA claims" »

I was reading this Third Circuit decision yesterday about an employee who got demoted for sleeping on the job, and all I could think of was Homer Simpson. For not unlike Homer J., a nuclear safety technician, this employee was responsible for monitoring his plant's equipment to prevent malfunctions that could result in explosions, property damage, injuries, and fatalities. Except, unlike Homer, the former employee was allegedly found sleeping on the floor of his office, with a pillow, blankets, and an alarm clock nearby. Now that's what I call an all-out Costanza! All that's missing here are the empty calories and male curiosity, eh Georgie?

Instead, we are left with a baseless age-discrimination lawsuit from a employee, claiming that when he was demoted, it wasn't for sleeping on the job. Rather, it was because of his age and an unwritten policy "to get rid of older employees," premised upon a single stray remark and slipshod investigation into the sleeping incident.

Smell that? Yeah, me too... (And it's not what The Rock is cookin')

To prove age discrimination, an employee must demonstrate, at a minimum, that the employment action taken occurred under circumstances that give rise to an inference of discrimination. One stray remark and a poor investigation -- even if true -- do not indicate that age was the motivating reason behind an employment decision, which is the burden that a plaintiff must meet to prove age discrimination.

What's the lesson to be learned here? If you are going to sleep at work, don't get caught, of course. Or maybe do your sleeping at home...in a bed.

Continue reading "It's tough to prove age bias after getting caught sleeping on the job" »

It is unlawful under the Age Discrimination in Employment Act "to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." An employee who alleges that she was fired in violation of the ADEA has a tough time prevailing because she must demonstrate not that "age was a reason" behind the termination decision, but rather that "age was the reason."

In a recent decision, a Mississippi federal court allowed a plaintiff, a former beauty supply company employee who suffered from hearing loss, to take her age discrimination claims to trial because she had presented evidence that that her manager made remarks such as, "Yeah, that's what happens when you get old." 

[I was going to break in here in Alright Hear This, but two f-bomb's and a sh*t preclude that. Instead, we'll try this one.]

The plaintiff also testified that her manager mentioned the need for "new blood in the area," and otherwise questioned why the plaintiff had not retired because "she was old enough to." Additionally, the plaintiff was able to demonstrate that one of the company's legitimate business reasons for terminating her, because she supposedly allowed her husband and sister (neither of whom worked for the company) to perform company work for her, was pretextual. One of the plaintiff's co-workers was not fired for allegedly doing the same thing and testified that the supervisor was ok with it.

Ultimately, even if the company prevails at trial, it is going to have to pay its legal counsel a lot more money to obtain that result. Learn from this. Train employees and managers that ageist (and other similar comments), even if meant in jest, have no place in the workplace.

On Employment Legislation:
Just when you thought you had the employment law landscape figured out, along comes pending legislation that could change everything. From age discrimination claims to workplace flexibility to unionization and labor organizing, new bills in the House and Senate may change the way you run your business. Here I am discussing all that jazz with Stephanie Thomas at the Proactive Employer.

On Social Media:
Last week, Jennifer King got my take on employers using social networks to check up on potential job candidates. Jennifer is an HR Analyst who writes about human resources systems for Software Advice, a company that compares and reviews HR software. She writes about trends, best practices, and technology in the HR market. Read the full article, "The Internet Persona: What Recruiters Want to Know About You", on her HR blog.

On Slides:
Last, but not least, it's Brooks Meyer starring in "That 70s Slide Show", featuring Ivy Meyer on the mat and yours truly in his directorial debut. Now, I'm only one SAG card and a few dozen credits behind my cousin.

Yesterday, the U.S. Equal Employment Opportunity Commission (EEOC) issued its "Final Regulation on Disparate Impact and Reasonable Factors Other than Age" (RFOA) under the Age Discrimination in Employment Act of 1967 (ADEA).

Wait, wha, wha, what the heck is an RFOA?  (The Cliff Notes versions because, like, you could click on the link above, dudes.)

Can you tell it's been a long day as I punch out this post? Anyhoo, make with the jump, dawg...

Continue reading "EEOC clarifies ADEA "reasonable factors other than age" defense" »

Below are summaries of four pieces of legislation of which employers should take note:

Protecting Older Workers Against Discrimination Act. Senator Tom Harkin (IA-D) introduced this bill last week. It would overturn the U.S. Supreme Court's decision in Gross v. FBL Financial Services, Inc. and lower the burden of proof for employees to prove age discrimination claims.




National Right to Work Act. Senator Jim DeMint (SC-R) has introduced this bill to "preserve and protect the free choice of individual employees to form, join, or assist labor organizations, or to refrain from such activities."




Working Families Flexibility Act. Late last month, Rep. Carolyn Maloney (NY-D) and Senator Robert Casey (PA-D) introduced this bill in both the House and Senate. In effect, it would create a statutory right for employees to request flexible work terms and conditions. Employers who receive such requests must then engage in an interactive dialogue with the employee.




Keep Employees' Emails and Phones Secure Act. This bill from Rep. Sandy Adams (R-FL) would "prohibit the National Labor Relations Board from requiring that employers provide to the Board or to a labor organization the telephone number or email address of any employee."

Gun to my head, none of these bills pass. But, all are worth watching. And speaking of watching, in the spirit of this post, below is the "I'm Just a BIll" Schoolhouse Rock video. You can also find the Simpsons parody here.

Huge h/t to the Washington DC Employment Law Update for some of these goodies (not the video, just the bills).

According to FacesOfLawsuitAbuse.org, the lawsuit that keeps those lawyer jokes flowing is...

Convict sues couple he kidnapped for not helping him evade police. A man who kidnapped a couple at knifepoint while he was running from the police is now suing the victims, claiming that they promised to hide him in exchange for an unspecified amount of money. The plaintiff, currently in jail, is seeking $235,000 for the alleged "breach of contract."

And from the ridiculous to the sublime just-about-as ridiculous...

A top runner-up was featured on this blog back in October; thus proving, once again, that the author of this blog has the maturity of an immature 12-year-old. It's the 60-year-old musician who sued for age discrimination and then claimed that the presiding 88-year-old judge was too old to hear the case.

Although, I particularly like the one that also ppears on the ridiculous lawsuit list about the mother who is suing Chuck E. Cheese, claiming that its games encourage gambling in children. Incidentally, I took my two-year-old and 10-month old to Chuck E. Cheese, last month. Although I have yet to find them throwing dice in the alley behind our house, I'm going to keep a close eye on them.

You can read the rest of 2011's most frivolous lawsuits here.

Oh, Meyer, where are you going with this one?

Well, it's my chance to play a little GnR after the jump while reminding my awesome employer readers about what it takes for an employee to actually prove a claim of age discrimination.

(Hint: It's not easy)...

* * *

Continue reading "Age discrimination: It's not rocket science." »

What's the point of having a written handbook policy if you aren't going to follow it? Better yet, what are the consequences of not following that handbook policy?

(Hint: they're bad).

Find out why after the jump...

Continue reading "What are the consequences of ignoring a written handbook policy?" »

Back in August, I blogged about a case where a federal court held that an employer inquiring about an employee's retirement plans, alone, does not discriminate on the basis of age. But what about relentlessly browbeating a plaintiff into retiring? Could that be age discrimination? What do you think, Brett? Find out after the jump...

Continue reading "Will ya just retire already? No, but I'll sue for age discrimination." »