Tuesday, November 27, 2012

Supreme Court Struggles Over Workplace Harassment Standard

WASHINGTON | Mon Nov 26, 2012 3:25pm EST
(Reuters) - Fourteen years after deciding that employers can be liable for workplace harassment by supervisors they employ, the U.S. Supreme Court on Monday appeared to struggle with an issue left unanswered: who qualifies as a supervisor.
A decision in the case against Ball State University, brought by a black catering assistant named Maetta Vance, could clarify how readily harassment victims may hold deeper-pocketed employers accountable under federal law.
Several justices questioned where best to draw the line, a task made harder by the agreement of the parties arguing in court that the standard set by the 7th U.S. Circuit Court of Appeals in Chicago in dismissing Vance's case was too strict.
In that June 2011 ruling written by Judge Diane Wood, considered one of its more liberal members, the 7th Circuit said that to be a supervisor, an employee must have the power to hire, fire, demote, promote, transfer or discipline the victim.
Three federal appeals courts have adopted this standard, while three others have said day-to-day oversight is enough to result in liability. A definition proposed by the Equal Employment Opportunity Commission resembles the latter standard.
At Monday's oral argument, Chief Justice John Roberts suggested to Vance's lawyer Daniel Ortiz that the 7th Circuit standard might prove workable.
He posed a scenario in which the most senior of five employees assigned to work in a single room gets to choose the background music, and tells a colleague: "I know you don't like country music; if you don't date me, it's going to be country music all day long.
"I would have thought, under your theory, that means that senior employee is a supervisor," Roberts said. "I would have thought the benefit of the 7th Circuit was that you don't have to go on a case-by-case basis."
Some justices suggested other scenarios, including whether a person becomes a supervisor by having authority to control a thermostat, or decide which employee must work in the only office without air conditioning.
In contrast, Justice Elena Kagan suggested that the 7th Circuit test might be too lenient on employers.
She said, for example, that a university could be freed from liability if a professor subjected a secretary to "living hell, complete hostile work environment on the basis of sex," solely because the secretary could not be fired by the professor, but rather by the head of secretarial services.
Vance, a black catering assistant at Ball State in Muncie, Indiana, who prepared everything from boxed lunches to formal dinners, had claimed she faced racial epithets and threats of physical harm at work.
Many of her problems stemmed from her dealings with Saundra Davis, a white woman she viewed as a supervisor. She said general manager Bill Kimes, also white, did not protect her and treated other workers better.
Vance said Ball State eventually retaliated against her complaints by making her a "glorified salad girl" who cut vegetables and washed fruit, despite a recent promotion.
Justice Samuel Alito suggested that this might not be enough to subject Ball State to liability.
"What is the most unpleasant thing that Davis could have assigned?" he asked. "Chopping onions all day, every day?"
Ortiz said the standard was not that precise, and that courts would have to use a "sliding scale of negligence" to review harassment claims.
He said a person who oversees a victim's work and can "instill either fear into the victim (or) control the physical location of the victim" would qualify as a supervisor.
Gregory Garre, arguing for Ball State, said the 7th Circuit standard was not a "complete answer," and that a harassing employee whose control of a victim's work meaningfully aided the harassment could subject an employer to liability.
But he said that Davis, under any definition, did not qualify as a supervisor, and therefore that Vance must lose.
With the parties in agreement that the 7th Circuit test was too restrictive, some justices suggested possible concern about having taken the case to begin with, given that the Supreme Court does not generally issue "advisory" opinions.
Alito asked "why shouldn't we just remand" to more fully develop the record, while Justice Antonin Scalia said, "There's nobody here defending the 7th Circuit" in the courtroom.
The federal government officially supported neither party, suggesting that the similar standards proposed by the EEOC and the 2nd U.S. Circuit Court of Appeals in New York might be appropriate.
"Control over daily work activities is where we would draw the line," Deputy Solicitor General Sri Srinivasan said.
Several women's and civil rights groups supported Vance's appeal, while the U.S. Chamber of Commerce, the National Retail Federation and various conservative groups supported Ball State.
A decision is expected by the end of June.
The case is Vance v. Ball State University, U.S. Supreme Court. No. 11-556.
(Reporting by Jonathan Stempel; Editing by Howard Goller and Cynthia Osterman)

Tuesday, November 20, 2012

Severance Agreements: Mandatory Requirements for Valid Releases

In this age of layoffs, employees are often presented with severance agreements when terminated.  These agreements typically require individuals to release all potential employment law claims, including age discrimination claims under the Age Discrimination in Employment Act (ADEA), in exchange for severance. 

The Older Worker’s Benefit Protection Act (OWBPA), part of the ADEA, is designed to protect the rights and benefits of older workers and imposes mandatory requirements for waivers of ADEA rights.  Oubre v. Entergy Operations, Inc. 522 U.S. 422, 427 (1998).  Among these requirements, is the requirement to provide employees who are terminated in a group termination (more than one employee) with OWBPA disclosure information at the same time they are given the severance agreement. The purpose of the OWBPA’s informational requirements is to provide an employee with enough information regarding the termination program to allow the employee to make an informed choice about whether or not to sign a waiver agreement.  29 C.F.R. §1625.22(f)(1)(iv).

Attorneys reviewing severance agreements should carefully scrutinize the OWBPA disclosure information provided to the terminated employee.  In order for an employee to validly release ADEA claims, the waiver releasing such claims must meet all of the strict, mandatory OWBPA requirements outlined in the statute and regulations.  29 U.S.C. §626(f) and 29 C.F.R. §1625.22.  These requirements include, among other things, information about the “decisional unit” or group of employees from which the employer selected employees for termination; the job titles and ages of those terminated and those kept by the employer; and eligibility factors or selection criteria the employer used to make the termination decisions.

In our experience, terminated employees often do not receive the required OWBPA disclosure information or the information they receive is inadequate.  For example, and among other requirements, the decisional unit disclosed may not be the actual group of employees the employer looked at when making its termination decision; or the job titles disclosed are not the job titles the company actually used; or the disclosure information may not include everyone who was terminated, including your client.  Our firm and Dorene R. Sarnoski Law Office were successful in challenging and invalidating the waiver/release agreements signed by employees nationwide in Peterson v. Seagate US, LLC, 2008 U.S. Dist. LEXIS 42179, No. 07-2502 (D. Minn. May 28, 2008).  The court found that the release agreements were invalid as a matter of law because they failed to meet all of the OWBPA mandatory requirements when the disclosure information did not include the job titles and ages of all employees who were terminated, including one of our clients.  The court found that, “[i]t may be that the inadvertent omission of a particular employee would be enough to affect one other employee’s decision to sign the release.”  Id. at 6.

Wednesday, November 14, 2012

3 Tips for Job-Seeking Boomers Hoping to Combat Age Discrimination

By Ritika Trikha for U.S. News and World Report
Posted: September 28, 2012

Recently, the research and consulting firm Millennial Branding firm teamed up with the career networking site Beyond.com to survey more than 5,000 job seekers about their job search. And they found that Baby Boomers -- folks in their late forties to sixties -- are having the toughest time finding jobs compared to other generations.

According to the study's findings, Boomers are searching the longest compared to Generation X or Gen Y. In fact, 25 percent of Boomers have been hunting for jobs for more than a year, while only 17 percent of Gen X and 10 percent of Gen Y have waited more than one year to land a job.

Even more importantly, 65 percent of Boomers feel employers have discriminated against them because of their age.

These results aren't a huge shocker -- there are plenty of reasons why employers might be wary of bringing older folks on board.

"They cost too much, might not seem relevant with the times, or don't fit with the corporate culture (if it's a young startup for instance)," suggests Dan Schawbel, a Gen Y expert and founder of Millennial Branding.
So what can you do about it? Schawbel offers some tactful tips for older folks looking to combat age discrimination: 

1. Don't give away your age in the resume. Schawbel suggests you pull up your resume and get rid of any work history that didn't take place in the last 10 years.
Next, it's time to do away with any college graduation dates and "potentially eliminate all dates," Schawbel says. He also suggests you downplay your job titles. "Especially if they're a sign that you are older, such as an EVP title," he says.
Bonus tip: "On your LinkedIn profile, don't include your picture if it portrays you as looking old," Schawbel adds.

2. Keep your skills current. This is a given -- no matter how many years of experience you've had in your field, there's always more to learn. Technology is changing rapidly and this impacts every industry.
Show employers that you're eager to adapt and keep learning by seeking out certification and classes on the latest software, database, or whichever application bolsters efficiency in your field. The educational media site Open Culture offers a great comprehensive list of 500 free online educational resources to help you stay relevant.

3. Networking is your best bet. As Boomers, you've developed a larger network over the years than any other generation. Use this to your advantage by "tapping your network," Schawbel says. It's "the best path to finding work." In fact, in their study, Schawbel and his team found that Boomers are job searching online more than younger generations, and that "they are especially using LinkedIn."

If you're not leveraging both online and offline networks, you're missing out on huge opportunities. "It's important that [Boomers] use all of their resources in order to get referrals," Schawbel says. "It's their biggest advantage over younger workers."

Thursday, November 1, 2012

Walmart Worker Wins $1.5 Million for Verbal Abuse by Boss

By:  Sylvia Hsieh, Posted October 26, 2012 at http://blogs.lawyers.com/2012/10/walmart-worker-wins-1-5-million-for-verbal-abuse-by-boss/

As Walmart employees stage their first retail-worker strike across the country, a 42-year-old former assistant manager has won a $1.5 million lawsuit for being mistreated by a store manager.

Meredith Boucher claimed she was verbally abused for six months between May and November 2009 when she worked as an assistant manager of a Walmart in Canada.

Boucher’s lawsuit accused store manager Jason Pinnock, 32, of calling her a “[expletive] idiot,” a “gong show” and “stupid” and that he made her count items in front of others to prove she could count.

“I didn’t eat. I was losing weight. I was throwing up blood, I was sick to my stomach all the time,” Boucher said.

The jury awarded her more than she originally sued for.

In California, five female Walmart employees are suing for gender discrimination individually, after the U.S. Supreme Court struck down a class action lawsuit brought by 1.5 million female employees against Walmart – the largest sex discrimination lawsuit in history.

Currently, employees are striking against Walmart’s attempts to “silence, retaliate against workers for speaking out for improvements on the job,” and are threatening to walk out on Black Friday, which is one of the biggest shopping days of the year.

Boucher’s attorney, Myron Shulgan of Shulgan, Martini & Marusic, said he was happy for his client.

“She championed the cause for workers and indicated that corporations will be made to respond to improper treatment of employees,” Shulgan said.