Want the secret to spotting a potential age discrimination claim a mile away?
I've got it for you after the jump.
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Want the secret to spotting a potential age discrimination claim a mile away?
I've got it for you after the jump.
* * *
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...
More after the jump...
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'.
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?
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.
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.
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.
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.
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.
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.