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

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

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

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 employment discrimination cases, some of the day-to-day details of a person’s employment are sometimes disputed.   Did an employee "continually" cry at work or only "occasionally" cry? And does it matter?

A recent Connecticut district court decision clarified that such trivial disputes about an employee’s background — without more — are not enough to be