So, a couple of months back, I talked about how separation agreements for small employers might not be covered by the federal law that covers such agreements.

After all, since the Age Discrimination in Employment Act only applied to employers that have 20 or more employees, the requirements for a “knowing and voluntary waiver” of claims under separation agreements only applied to those larger employers.

Because this is a federal law, it applies in Connecticut though states are free to craft additional laws if they wish.

Recently, though, I’ve heard of an employee spouting off about “advice” he received that  Connecticut state law had the same requirements as federal law did.

And since Connecticut’s anti-discrimination laws apply to employers of 3 or more employees, the employee argued that he should be provided with 21 days to consider the agreement.

When I heard this, I scratched my, well, proverbial head about this one.  Did I miss something?

The short answer is no, I didn’t miss something.  Connecticut law doesn’t say this.  You can see for yourself in Conn. Gen. Stat. 46a-60.

But how did the employee get such advice?

The first answer may be the simplest one: The attorney he spoke with doesn’t routinely practice in the area.  Sometimes, well-meaning lawyers just overstep their knowledge basis.

Another obvious answer is that the employee’s so-called advice was from “Attorney” Google.  Google is really good at finding things that might apply to your situation — not as good yet at telling you whether it actually applies to your situation.

And if you Google a topic like this, you might actually find a state court decision that looks — at first blush — like it might be on point.

State courts often use the following language in their decisions:

Although this case is based solely on Connecticut law, we review federal precedent concerning employment discrimination for guidance in enforcing our own antidiscrimination statutes.

What does THAT mean?

Typically for the same types of disparate treatment claims for, say, gender discrimination claims, courts in Connecticut don’t have as much as experience as federal law. So where the law is the SAME, it makes sense to look to federal laws that are similar.

The problem in the age discrimination statute context is that Connecticut law is DIFFERENT than federal law at times. There is no state equivalent. So looking to federal law makes no sense whatsoever.  And sure enough a quick search of Google Scholar reveals NO state law case applying that federal law to a review of separation agreements.

So how ARE separation agreements to be reviewed in Connecticut? In essence, you would most likely look at the agreement under state laws dealing with contracts.  Typically, this is also done through the “common law’ – that is precedent from the courts.  And Connecticut courts haven’t said much about separation agreements.

Employers are sometimes caught in the middle of receiving advice from their counsel (hopefully correct) and what the employee believes is true whether through an attorney or otherwise.  Employers should understand the misinformation that exists out there and, when confronted with these issues, try to explain them to employees.

Otherwise, a seemingly innocuous situation could turn much more stressful when the employee thinks (and worse, is being told) that the employer is violating a non-existent state law.

There are many confusing aspects of employment law — not the least of which is that certain laws only apply to employers of a certain size.

For example, the federal age discrimination law, ADEA, only applies to a business if it has 20 or more employees who worked for the company for at least twenty calendar weeks (in this year or last).

Now in some instances, that might not matter in Connecticut because Connecticut’s general anti-discrimination laws generally (with exception) apply to employers of three or more employees.

Why does this matter? Because there are some aspects of this federal law (and others) that don’t apply to small employers.

One prime example of this is the requirement that employers comply with the Older Worker Benefit Protection Act, which is part of ADEA.  This law requires separation agreements to have certain conditions, including 21 days for the employee to consider the release.  But employers who are under 20 employees are not covered by ADEA and thus don’t need to follow this particular legal requirement (even if it may still be a good idea).

Another area that this comes up is in FMLA coverage.  Most people are aware that FMLA only applies to employers who have 50 or more employees.

But there is a secondary requirement that is often overlooked — that the employee asking for such leave be located in an office that itself has 50 or more employees within a 75 mile radius.

By way of example: Suppose an employer has 1000 employees, but only 25 located in Connecticut and there are no offices within 75 miles.  An employee has a serious health condition; is the employee eligible for FMLA leave?

The answer is no.  At least 50 employees must work for the employer within a 75 mile radius.

Practical Law had a good summary of this:  

Employers should analyze whether the employee meets the 50 employee and 75 miles requirement when the employee gives notice that leave is needed. An employee who is deemed eligible for FMLA leave continues to be eligible for the next 12 months even if the number of employees drops below 50. To determine whether an employee is eligible, the distance is based on:the employee’s physical work site using surface miles over public streets, roads, highways and waterways by the shortest route; or if an employee has no fixed work site, the employee’s work site is his home base, the site to which he reports or the site from which his work is assigned.

Now, nothing prevents an employer from giving all of its employees FMLA-leave, but they’re not required to.

Thus, employers who are in various locations should be sure to look at all the employer-size rules to figure how where they are covered and how. Because size really does matter.

franklinUp on Fortune magazine’s column “Practically Speaking” is the following question:

Frank has been with us for more than 20 years. He works in the warehouse and has done a good job for us. I like him. But, to be honest, for the work he performs I could easily replace him someone younger and … cheaper. Would it be wrong to let him go?

Well, what a loaded question.  The advice column side-steps an important issue and gets into a discussion regarding overhead, benefits, etc.

If you follow this path blindly, you may walk right into a lawsuit.

Why? Because discrimination laws prohibit discrimination on the basis of age and you’re already acknowledging that you want someone “younger” — even if salary considerations may also be involved.

In fact, there have already been cases that talk about similar scenarios. In one case, a supervisor told an employee that he was “looking for younger single people” and that, as a consequence, the employee “wouldn’t be happy [at the company] in the future.”  In other cases, comments about replacing workers with “younger, cheaper” ones can also be used to support an age discrimination claim.

Even without the comment, a replacement by an employer of an employee with someone significantly younger can give rise to an inference of age discrimination.

So, case closed?

Well, maybe in this instance, since the employer already has this “younger” notion embedded in its decision-making process.

But suppose the employer is looking to cut costs and wants to replace higher salaried workers with cheaper ones: Can it do that?

Well, after the court’s decision in Gross (which I discussed way back here): Maybe.  The court there held that age must be the decisive factor in the employer’s decision and that “but for” the employee’s age, the employer would not have made the same decision.

Thus, an employer who believes it can get the same work done by an someone at a lower salary may sometimes survive an age discrimination claim — so long as age doesn’t factor into the decision.  But before you do this, be sure to consult with legal counsel as it’s a minefield to navigate.  This is particularly true in Connecticut where it remains to be seen how closely the courts will truly follow federal law in this instance.

And one more note:  Terminating employees to avoid further pension obligations or other benefits is likely illegal in many instances under federal law.  The Older Workers Benefit Protection Act (OWBPA), which we often think of as only applying to separation agreements, also made it illegal for employers to use an employee’s age as the basis for discrimination in benefits, and to target older workers for their staff cutting programs on the basis that benefits were too costly.

Cost considerations are certainly important for companies to consider. But tying those considerations to age is a step too far under the law.   Be sure to understand the distinctions. And try not to blindly follow advice columns (or even blog posts!); each circumstance is different and getting appropriate legal advice in this instance really is critical.

As I keep trying new things for the blog, today I introduce an “explainer” video.  You’ve seen them before; it’s a short movie explaining a subject.

Today’s topic is one I’ve touched on from time to time — separation agreements that comply with the Older Workers Benefit Protection Act.

Let me know what you think of videos like this.

Last week, a story caught my eye and the attention of some of my colleagues.  As reported first by Bloomberg BNA, IBM has stopped providing the comparison information that is typically required in separation agreements for older workers under the Older Workers Benefit Protection Act.

You may be wondering how that is possible.  Robin Shea, of Employment & Labor Insider beat me to the punch with a very good recap that I don’t think I can improve upon.  So I’ll cite two paragraphs below:

As you know, when an employer has a “group termination” — usually, a reduction in force, but a “group” can be as few as two people – it is required to disclose the job titles and ages of the individuals in the “decisional unit,” which means the working unit from which the decisions were made. If the employer doesn’t make the disclosures (and get ‘em right), then it can’t get a valid waiver of age discrimination claims under the federal Age Discrimination in Employment Act although the waiver may be valid in other respects …..

But how can IBM do this?  They aren’t requiring employees to give up their age discrimination claims, that’s how. They’re just requiring them to use arbitration instead of the court system. Which I think is legal, based on Gilmer v. Interstate/Johnson Lane, a Supreme Court decision from the 1990′s.

In essence, IBM is using a separation agreement with two sets of rules: For all claims except age discrimination, employees must release IBM. For age discrimination claims, IBM has said that employees do not have to release IBM but must take any such claims to arbitration.

Will it work? That remains to be seen. It has yet to be challenged in court or the EEOC.

But most employers are not IBM and do not have the resources to take this strategy.

So I suspect that many employers will simply follow the path of least resistance and provide the comparison information under the OWBPA.  If done right, then employers will get the benefit of an additional release without the hassle of arbitration or the added cost.   It’s worked for many employers for over 20 years and, IBM’s strategy notwithstanding, it’s probably not worth changing gears now.

There are many good free resources for additional background on this topic. One that I would suggest was produced by the ABA in 2008 and is still highly relevant today.

Over the weekend, I asked my colleague, Chris Engler, to think of any employment law lessons that could be divined from the victories of the UConn Men’s Basketball team.  He reminds us in the post below that preparation still matters.  Of course, this isn’t the first time this blog has written about the UConn Huskies (see 2009 and 2011).  Will 2014 bring another championship?

This past weekend, the UConn men’s hoops team reminded us that hard work and thorough preparation can prevail in a contest that looks tough to win on paper. A recent federal court decision shows that those same qualities serve Connecticut employers well too.

The alleged facts are told in the court’s decision: Martin Donovan, a longtime Yale University administrator, was terminated back in 2010 after an investigation revealed numerous problems with his management style. Donovan sued for age discrimination based on three comments by his supervisors.

The background facts are important. A few months before his termination, when Donovan was 61 years old, his supervisor asked him about rumors that he was planning to retire. When Donovan vehemently denied the rumors, the supervisor expressed relief that Donovan would continue working.

Previously, another supervisor had commented on other employees’ ages in Donovan’s presence. The supervisor first conveyed his satisfaction that an accountant left and was replaced by “someone younger.” Later, the supervisor mentioned that a researcher was too old for his research to be valid.

Despite these comments, the federal court for the District of Connecticut concluded that they weren’t enough to show age discrimination. In doing so, the court provided some insight into how an employer can avoid an age discrimination claim. (Readers, get out your notepads.)

First, the court highlighted the thoroughness of the investigation into Donovan’s managerial problems. The investigators were theoretically impartial, being from another Yale unit, and they interviewed and observed nearly every employee in the department. This convinced the court that these problems weren’t just a pretext.

That brings us to Takeaway #1: Thoroughly investigate and document performance issues, such as Donovan’s managerial problems, as soon as they arise. Yale’s comprehensive investigation was its saving grace in this case.

On a related note, here’s Takeaway #1a: An employer probably has more pressure to conduct a solid investigation if there was a recent incident involving an employee’s protected status. To try to show a pretext, Donovan emphasized that his termination came mere months after the retirement conversation. While the court here wasn’t convinced, another court viewing somewhat different facts might be. Again, consistent and accurate documentation of issues should avoid this dilemma.

Continue Reading Final Four Madness: Preparation Still Matters To Win On (or In) The Court

In Tuesday’s The New York Times, an article (that, as of Monday evening was one of the lead pieces on the NYTimes.com website) argues that age discrimination continues to exist in society and that it is hitting the baby boomers particularly hard.  (Indeed, the article’s tag is “for-laid-off-older-workers-age-bias-is-pervasive”.)

I do not challenge the assertion that age discrimination continues to exist in certain parts of society.  The statistics quoted in the article do undermine the article’s assertion though because the unemployment rate for 55-64 year olds is 5.4 percent (compared with 7.4 percent) for the general population.  I’ll leave it for others to debate what the statistics mean.

But the article does make one blind assertion that should not go unchallenged.

First, the background: The U.S. Supreme Court in 2009 changed the standard of proof needed to establish an age discrimination case to a “but for” standard.  As I noted back then, however, I didn’t think we’d see a huge shift in age discrimination cases.  Yes, it might make it a little more difficult for an employee to prove his or her case, but it wouldn’t change how many cases are handled — particularly in states that have their own anti-discrimination statutes.

Indeed, a recent article suggests that courts haven’t made much of a shift in how they handle ADEA claims in the wake of the Supreme Court’s ruling.  And another article for an ABA conference suggests that the practical impact of the decision has been “vastly overstated.”

But try telling that to the Times. Indeed, it goes on to make a remarkable, uncredited assertion: “Since the Supreme Court ruling, most lawyers won’t even take age discrimination cases.”

Most lawyers? From where does the Times get this assertion? It fails to say. It provides no statistics, no cite, no quote to support this.  Nothing.

A look at the EEOC filing statistics doesn’t support this. Indeed, the statistics fail to show any significant drop off of age discrimination cases after the Supreme Court’s ruling.

In Fiscal Year 2009, there were 22,778 charges filed. In the next year, there was actually an increase to 23,264 claims filed.  By FY 2012 (the last available statistics), there were still 22,857 claims filed — a lesser amount is, in part, to be expected as the economy improves.

Now, admittedly, the charges don’t account for claims that were filed with an attorney’s assistance. But if “most lawyers” won’t take age discrimination cases anymore, wouldn’t you expect to see a significant dropoff?

NELA – the National Employment Lawyers Association — continues to put forward CLE programs discussing how to advance ADEA claims even with the Supreme Court’s decision.  So, even the group that represents employees the most isn’t throwing in the towel.

So, where did the Times get this assertion from? I’ve hunted for a source but have yet to find one.

So, I turn to you readers.  What do you think? Is The New York Times correct in its assertion? Or is this a case for the Times’ Ombudsman?

 

Years ago, it was believed that summary judgment motions by employers should be rarely granted. 

And yet, judges in Connecticut district court keep granting these motions.  A recent federal court case in Connecticut is the latest example of how courts are using their power to weed out cases before they reach a jury.

In Miller v. Ethan Allen Global (download here), a customer service supervisor who resigned after having performance issues, claimed that she was “assaulted” twice by employees. (I use the word “assault” in the legal definition stage which is a bit different than conventional wisdom on assaults.)  The court said that these incidents were insufficient to send the case to a trial.

What were the incidents?

First, she claimed her supervisor knocked her hand off of a phone and shoved her shoulder when she was on the phone to make a call regarding a customer complaint.  The supervisor allegedly said she did not care and that the employee was to stay off the phone. 

Second, she said she was involved in a physical altercation with a co-worker. She claimed that the co-worker came to her desk, slammed down a one-page e-mail from one of  her employees, grabbed the back of her neck and told her to tell her “goddamn employees to stop emailing me with the same questions over and over again”.  The Plaintiff claimed that when she spoke to her supervisor about it, her supervisor responded by laughing and telling the plantiff to “go tell her to f*ck off.”  The plaintiff did not seek treatment but claimed her neck was sore for a day and a half.

After these two incidents and after her performance had been roundly criticized, the plaintiff offered to resign. The employer took her up on her offer. Quickly. 

But even the resignation did not end a lawsuit.

The plaintiff filed suit in federal court in Connecticut claiming that she was the victim of age discrimination and a hostile work environment (among other reasons). The court rather easily disposed of the claims for a variety of reasons, including that she resigned (instead of being fired) and did not suffer any “adverse employment action”. 

As to the “two incidents of alleged assault”, the court said that these are insufficient to raise a material issue of fact with regard to an adverse employment action.

“Only in limited circumstances does a single, acute incident of abuse qualify as an adverse employment action.” [Citation omitted.] While [Plaintiff] alleges two separate incidents, neither incident was so “extraordinarily severe” as to “alter the conditions of a working environment,” as evidenced by the fact that [Plaintiff] continued to work at EA in the same position and with the same responsibilities…. Further, the two incidences involved two different people. Taking the facts in the light most favorable to [Plaintiff], she does not set forth evidence to support her allegation that she suffered an adverse employment action. Consequently, she fails to set forth a prima facie case under the ADEA.

For employers, the case is another indication that federal courts remain at least receptive to motions for summary judgment — something that can’t be said of state courts.  If an employer is sued in state court and has an option of removing it to federal court (on jurisdiction grounds), it’s worth serious consideration in most employment discrimination cases.

Today, the EEOC has published its final rule clarifying a portion of the Age Discrimination in Employment Act (ADEA).  You can download the rule here and a FAQ from the EEOC here.   The rule comes as a partial response to a 2008 U.S. Supreme Court decision that analyzed the issue. 

The rule has some significance for employers who have policies or take action that may have a disparate impact on older workers. In plain english, disparate impact essentially means an age-neutral rule that affects older workers more than younger workers; disparate treatment means a rule or action that treats older workers differently.

The easiest example to think of is suppose a police department has a physical fitness test so that officers can pursue and apprehend suspects; that practice may have a disparate impact on older workers . 

So what did the final rule clarify? According to the EEOC: Continue Reading EEOC Publishes Final Rule on Reasonable Factors Other Than Age (RFOA)

In a post Friday, Walter Olson over at Overlaywered posed this question, “If I could press a button and instantly vaporize one sector of employment law…”  (His suggestion? Age Discrimination laws.)

Jon Hyman, at the Ohio Employer’s Law Blog, picked up on the question and posed it for his readers as well.  Jon’s choice? The Fair Labor Standards Act, the Depression-Act federal wage & hour law.

Set phasor to vaporize

Frankly, I think the question is a bit loaded because it suggests eliminating an area of employment law.  That question is more of a political one.  Jon has seemed to answer the question by reframing it as this — If you were rebuilding an area of employment law from scratch, what would it be?

For me, it’s the area of “leave” laws.  Right now, particularly in Connecticut, there are multiple laws an employer must consider when an employee is absent, particularly for an injury on the job.   Among them: ADA, CFEPA (Connecticut’s version of the ADA), FMLA, CTFMLA (Connecticut’s version of the FMLA), Connecticut Workers Compensation laws, and Connecticut’s new Paid Sick Leave law.

Not all employers qualify because each statute has a different threshold depending on the number of employees it has and the type of work the employer does. These laws also have differing (and sometimes conflicting) applications as well.

Trying to figure those out shouldn’t take a law degree, and yet, they do.

Imagine, for example, an employee who injures his back while on the job, perhaps suffering a permanent partial  disability.  Six laws may cover what type of leave and time off the employee is entitled to.  That seems inefficient and ineffective.

Of course, this is likely a futile exercise. As I explained in a prior post, the legislature is very good at creating new laws, but bad at rescinding outdated ones.

So, readers, what do you think? What one area would you reshape, rebuild (or vaporize) in employment law?