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.
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.
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.
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.
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?
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...
Your employees view pornography. Well, some of them do.
I know this may be a shock to some. And if you are one of those people, and you run a business in one of the mid-Atlantic states, give me a call. We should talk sometime. Then, I'll hit you over the head with a proverbial tack-hammer.
Until then, over the next two days, I'll address two recent examples of where nekkid pix caused employees to lose lawsuits against their former employers. The first case -- an age discrimination matter -- follows after the jump
From the sublime to the ridiculous, the NY Daily News reports here that a 60-year-old musician suing for age discrimination claims that the presiding 88-year-old Manhattan judge is too old to hear the case.
According to the NY Daily News story, the plaintiff, who was representing himself before his case was dismissed in October, slammed the judge, calling him "slow-witted and unable to function."
In a pleading filed with the court, the plaintiff also wrote that the judge, who has degrees from Harvard and Columbia Law School, "may have been a very learned jurist in his day, [but] should be removed from the bench, both because of his mental and physical limitations [and because he] could barely see unless he put his face almost on top of a document."
You know what's not a good business practice for a car dealership? Referring to an older male employee as "old man," "pops," and "old mother******" and then steering car sales away from him to younger employees. Age discrimination is serious business, yo.
Let's say that a company holds a meeting for older employees (all are over 49 years old). And the purpose of the meeting is to discuss the future expectations of the employees in attendance, including retirement options at the company. Then throw in a stray remark from the company, something like, "When people get older, they tend to slow down."
What if one of the meeting attendees is later laid off? Is that age discrimination?
If the employer has any non-age-related reason for the layoff, then the answer is no, according to this federal court in Arkansas.
The court was presented with no case support for the position that a meeting to discuss retirement options is inherently unlawful or discriminatory. As for the stray remark, it would constitute circumstantial evidence that, when considered with other evidence, may give rise to a reasonable inference of age discrimination. However, if that stary remark is not directed specifically at the plaintiff, then its probative value is nil.
So, essentially...
The bar for age discrimination is hella-high.
For there to be age discrimination, age has to be the "but for" cause of termination. That is, the employee must show that any legitimate business reason espoused by the employer to justify the discharge is not only false, but also that age was the real reason for the firing.
Welcome back to "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". But before I dispense with the brevity, allow me to pat myself on the back as, yesterday, both the ABA Law Journal and the Wall Street Journal recognized one of my recent blog posts.
***A-thank you. Thank you very much. You're all too kind.***
On the heels of this case from the Second Circuit that I read about yesterday, I figured that today we should discuss releases. Cue the music...
Let's begin with a hypothetical. Robert Rank-And-File has sued his former employer, Pennsylvania-New Jersey-Delaware, Inc., asserting various discrimination claims against the company (race, age, retaliation). After months of scorched-earth litigation, the two sides agree to settle. Pennsylvania-New Jersey-Delaware, Inc. prepares a settlement agreement which provides that in exchange for a settlement sum, Robert agrees to release all claims against the company. The agreement even includes the language, "THIS IS A GENERAL RELEASE."
Guess what, folks? If that is the extent of the release language, then Pennsylvania-New Jersey-Delaware, Inc. likely just funded the balance of Robert's age discrimination action against the company because Robert has not released his age-bias claim.
How could that be? Well, in 1990, Congress amended the Age Discrimination in Employment Act (ADEA) to impose specific requirements for releases covering ADEA claims, so that a person waiving rights under the ADEA would do so in a manner that is both "knowing and voluntary." In order for an ADEA waiver to be both "knowing and voluntary," it must contain seven elements:
A waiver must be written in a manner that can be clearly understood. EEOC regulations emphasize that waivers must be drafted in plain language geared to the level of comprehension and education of the average person eligible to participate. So dump the legalese and technical jargon.
A waiver must specifically refer to rights or claims arising under the ADEA. EEOC regulations specifically state that the waiver must expressly spell out the Age Discrimination in Employment Act by name.
A waiver must advise the employee in writing to consult an attorney before accepting the agreement. This is an easy one to take for granted if you know that the employee has already retained counsel. But, you still need it in the agreement.
A waiver must provide the employee with at least 21 days to consider the offer. If the employee wants to sign the agreement before Day 21, that's fine. But, if material changes to the final offer are made, the 21-day period starts over. (Note: if a waiver is requested in connection with an exit incentive or other employment-termination program offered to a group or class of employees, the individual gets 45 days in which to consider the agreement).
A waiver must give an employee seven days to revoke his or her signature. Whereas, the employee may waive the 21-day requirement above by returning a signed a agreement before Day 21, the 7-day revocation period cannot be changed or waived by either party for any reason.
A waiver must not include rights and claims that may arise after the date on which the waiver is executed. This provision bars waiving rights regarding new acts of discrimination that occur after the date of signing, such as a claim that an employer retaliated against a former employee who filed a charge with the EEOC by giving an unfavorable reference to a prospective employer.
A waiver must be supported by consideration in addition to that to which the employee already is entitled. For example, withholding an employee's last paycheck on the condition that he/she agrees to release any potential age discrimination claim will not work.
Although not technically a requirement, a best practice when settling the claims of a current or former employee is to call a capable employment-law attorney.
Welcome to the inaugural 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".
So, I was recently asked whether a younger employee may have a federal age-discrimination claim against his employer if the company treats a similarly-situated older employee better.
The answer is no. In 2004, the U.S. Supreme Court in General Dynamics Land Systems, Inc. v. Cline held that the Age Discrimination in Employment Act of 1967 (ADEA) does not forbid discriminatory preference for the old over the young.
Update: Some readers on LinkedIn wisely noted that, notwithstanding the federal position on "reverse age discrimination," some states and municipalities have laws on the books that do recognize claims based on discriminatory preference for the old over the young. New Jersey is one of those states.
I had this dream that was I slaloming down a snowy mountain towards a giant fortress under a hail of gunfire. But the next thing I know, I wake up and I'm falling down this elevator shaft. And, just as I'm about to bite it, I find myself in a car submerged underwater, having just taken a 100-foot fall from the bridge above.
And then I'm in my bed.
It's 3 am and I am dripping sweat. I tap the Joe Beimel bobblehead on my nightstand -- I know I shouldn't have told you about my totem but, damnit, I love my readers.
Just as I'm starting to get my bearings, what hit me next was ten times as powerful as any three-tiered Inception dream and it kept me up for the rest of the night:
Could the United States Supreme Court's decision in Staub v. Proctor Hospital, in which the Court affirmed the theory of subordinate bias -- or "cat's paw" -- in an action under USERRA, equally apply to claims brought under the Age Discrimination in Employment Act (ADEA)?
But, oh hells-to-the-yeah, the Tenth Circuit, sensing my angst, issued an opinion on Thursday answering all of my questions. So, while I grab my meds, you hit the jump and find out if the cat's paw doctrine applies to ADEA claims.
A 51-year-old auto-parts specialist with lupus, fibromyalgia, diabetes and arthritis, claimed that his 29-year-old co-worker called him an "old cripple" and an "old man," labeled him "too old to be trained," and threatened to beat him with a baseball bat.
The 51-year-old responded by telling his manager that he would kick the 29-year-old's ass and then came to work with a handgun in his car.
Wha Wha Whaaaaaat?!?!
Did the older employee overreact? Maybe. But was he the victim of a hostile work environment?
Yesterday, the 
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." 
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?
Welcome to the inaugural 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".
