Before You Sign A Severance Agreement

Bertelson Law Office has a successful history of reviewing, evaluating and strategically negotiating severance agreements, "buy-out packages", executive agreements and non-compete agreements.  We can help you assess whether the package you were offered makes sense considering the specifics of your employment.  

Feel free to contact us if you would like us to review your severance package.

The below is an article written by Donna Ballen taken from the website Aol Jobs:  http://jobs.aol.com/articles/2012/09/13/should-you-sign-that-severance-agreement/

Here are some important things to consider when you are presented with a severance agreement:

Take your time:Because this reader is clearly over 40, he should have been given at least 21 days to review the agreement and take it to a lawyer before he signed. If he wasn't given that time, then any release of age discrimination claims might not be valid. Of course, the agreement probably says he had that much time, and he's acknowledging it if he signed. If you're being pressured to sign before you have a chance to properly review it, I suggest putting your request for more time in writing, by email, fax or some way you have proof you sent it. Put in writing that they have given you a deadline of x-date, that you want to take the agreement to a lawyer, and that you need another week or a few weeks to review it. If they deny the extra time, you now have it in writing.

Limits on your ability to work:Even if you didn't sign a noncompete agreement while you were employed, some employers may try to sneak one into a severance agreement. If you're signing an agreement that you can't work for a competitor for a year or two after you leave, you'd better make sure you're getting enough money to tide you over. Some agreements ask you to affirm you will abide by an existing noncompete agreement. If you sign, you may be giving up some defenses you had to the enforceability of the prior agreement. Be careful, and make sure you can live with any noncompete restrictions before you sign.

Confidentiality:If you are agreeing to keep company information confidential, beware. Some management-side lawyers use provisions like this to say that, if you work for a competitor, you would inevitably have to disclose confidences. In effect, you've signed a noncompete and didn't even know it. I like to insert some language into these provisions saying they aren't intended to be a noncompete agreement.

Release:If you're giving up all the potential claims you have against your employer, you should make sure you understand what you're really giving up. The reader who asked this question mentioned some comments made that indicate he might have an age discrimination claim. If you take your agreement to an employment lawyer, you should discuss any potential claims you have to see if they might give you leverage to negotiate a better agreement. If you were treated differently than others of a different race, age, religion, etc., you might have a discrimination claim. If you were fired right after objecting to an illegal practice, taking Family and Medical Leave or making a worker's compensation claim, you might have a retaliation claim against your employer. These are just some examples of claims you'll be giving up if you sign without understanding your rights.

Mutuality:If you're releasing your employer from potential claims, can they turn around and sue you for something? If you're agreeing not to say negative things about them, are they still able to slam you in references? If the agreement itself is confidential for you, can the employer tell coworkers and potential employers about it? These are some of the provisions I like to insist the employer make mutual. After all, if you have obligations to them after you leave, shouldn't they have similar obligations to you?

My number one rule for signing any agreement is this: make sure you understand it before you sign. When in doubt, have an employment lawyer in your state review and explain it to you and discuss your options. Sure, it will cost some money, but isn't it worth paying to be sure you aren't making a huge mistake in signing?

We've Moved Backward in Closing the Gender Wage Gap

From:  Forbes, March 7, 2013
By:  Bryce Colvert

The gender wage gap is a hot topic. So hot that President Obama’s first act when he took office was signing the Lilly Ledbetter Act, which give the victims of pay discrimination more time to file charges against their employers. It even came up during the presidential campaign last year and was pointedly raised during one of the debates.

With all of this attention and even some legislation, you might think that we’re making progress toward closing the gap between men and women’s earnings. You’d be wrong. In fact, a new report from the Institute for Women’s Policy Research out today shows that the gap between median annual earnings for men and women working full time was lower in 2011 than in 2010 – and in fact equal to the gap as it stood in 2009. Median weekly earnings for full-time workers saw a gap of 80.9 percent in 2012, declining more than a whole percentage point since the year before. (Keep in mind all you gender gap naysayers: this is for full-time employees. Factoring in women’s “choices” to go part-time or take time off from their careers would make the gap even larger.)

What’s particularly strange about this is that the wage gap typically narrows during a recession, as Ariane Hegewisch of IWPR told me. “This is because men are more likely to work in jobs with high bonus payments and overtime work; in a recession discretionary payments such as merit pay tend to go down,” and men are the primary recipients of these lavish rewards.

What’s worse, though, is that this latest speed bump is dwarfed by the slowdown in progress since the 1990s, as can be seen in the graph above. As the report notes, “Since 2001 the annual gender earnings gap narrowed by only about one percentage point. In the previous decade, from 1991 to 2000, it closed by almost four, and in the decade prior to that, 1981 to 1990, by over ten percentage points.” Where we were making solid progress toward true gender parity in pay, recent decades have seen it trickle to a slow crawl.

So what’s going on here? No one is quite sure yet why the recent slowdown has occurred. Hegewisch posited that men’s bonuses may be returning to normal, increasing the gap. Another important factor is likely that the public sector has been shedding so many jobs, a place where women hold a large share of employment. The jobs there are also higher paying and tend to employ more educated women – so as they lost those jobs, they brought the average compensation for female workers down with them.

The longer-term path of stagnation that we’ve been on for the past two decades is caused by two factors: women’s earnings going up and men’s earnings stagnating or going down. Women saw a huge boost from doors opening for higher-level jobs thanks to Title IX and more equal access to education and Title VII. Mothers also entered and stayed in jobs more rapidly during that time. At the same time, men’s real wages suffered from the decline in manufacturing and anti-union policies. “Women’s earnings tended to be so low that the only way was up,” Hegewisch summed up.

It’s a complex problem, and so far we’ve tried to address it with minimal solutions. But our efforts aren’t paying off. Women are backsliding.

FMLA Not Really Working For Many Employees

By Jennifer Ludden, NRP, February 5, 2013

Twenty years after President Bill Clinton signed the Family and Medical Leave Act, workers' rights groups say many employees still must choose between their family or their job.

They're marking the anniversary with calls to expand the law, and for Congress to pass a new one that would provide paid leave.

What Falls Under The FMLA?

FMLA provides up to 12 weeks per year of unpaid leave if an employee has a new baby or a serious illness in the family. But there are a number of restrictions, meaning some 40 percent of the workforce is not eligible.

"It has a very narrow definition of family," Ellen Bravo, of Family Values @ Work, says.

Same-sex partners can't use it to care for each other, and people can't use it to care for a grandparent. Only those who work at least 25 hours a week are eligible, even as an ever growing share of the labor force is part time.

"Many people are [cobbling] together two or three part-time jobs, none of which have enough hours to make them eligible for Family and Medical Leave. So this is a disaster," Bravo says. "We have to bring the rules in line with the realities of the workforce."

Crucially, businesses with fewer than 50 people are also exempt.

Not Eligible For FMLA

"I was shocked to find out that I wasn't eligible for FMLA," says Jeannine Sato, who became pregnant when she was a manager at a North Carolina nonprofit that touted its family-friendliness. She was told to return to work after six weeks or risk losing her job.

"I had a lot of issues with that," she says. "A difficult delivery. I had a colicky baby. My husband was working. It was very stressful, and I left as a result of it."

Ironically, Sato's husband's employer — an even smaller firm — felt so badly for the couple that it voluntarily gave him a month of unpaid leave.

Sato realizes she was still lucky. Today, she works with low-income women who are new mothers.

"I see parents going back to work after one or even two weeks because they have no paid sick [leave], they have no vacation, they're not eligible for FMLA," she says. "Even if they were eligible, they couldn't afford to take the unpaid time off."

FMLA Not For Everyone?

"Employers have constraints on them," says Marc Freedman, the head of labor law policy at the U.S. Chamber of Commerce, which led opposition to the Family and Medical Leave Act.

He says even unpaid leave is too big a burden for many small companies. For larger businesses, he says FMLA works pretty well for new parents, but medical leave can be a nightmare for employers to track.

Freedman says it's especially challenging when workers use it intermittently, with no advance notice.

"It's a ripple effect," he says. "Other people have to cover for them. Customers are left wanting. It can create a lot of problems throughout the workplace."

Taking Days Off

The Society for Human Resource Management says FMLA is consistently the top issue for employers who call its hotline. Among their questions: Which employees are eligible? And which illnesses are "serious health conditions"?

Then there's misuse of the law. Freedman says the leave was deliberately left unpaid to prevent that, and yet "the day of the year when FMLA leave is accessed the most is the day after the Super Bowl."

Still, a new survey by the Labor Department finds the vast majority of employers say it's easy to comply with the law and that misuse is rare.

And if there are some bad-egg workers, the same can also be said for some businesses.

Pushing Through The Pain

"It was described to me as if something really disastrous happened," says Mo Kessler, who used to work at a national grocery chain in Kentucky.

She told her bosses she had endometriosis and suffered excruciating pain a few days each month. But no one ever mentioned that she could use FMLA leave, and, at the time, she didn't know better. Kessler says she was told to push through the pain, or be written up.

"I would try to hide in the back because my face was so pale," she recalls. "I was so visibly sick that I needed to hide away from the customers, to not scare them off!"

With so many gaps and such confusion, the main debate over work and family has moved away from the FMLA and back to the original aim of those who pushed for the law: paid family leave.

Grass-roots organizations have been pushing such measures in states and cities across the country in recent years.

California and New Jersey have both passed a paid family leave insurance program in the past decade, and advocates hope they might be a model for federal legislation. They hope that will happen before another 20 years pass.

Severance Agreements Should Be Carefully Scrutinized

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. 

Before signing away legal rights, severance agreements should be carefully scrutinized.  Our firm assists employees in reviewing severance agreements and negotiating terms contained within these agreements.

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.

Code Word for Age Discrimination

By:  Jessica Lappin,
Published in:  The Huffington Post, January 17, 2013

New Yorkers over 55 quickly learn the open secret that "overqualified" means "too old." The Great Recession has impacted workers of all ages, but seniors and near-seniors have been hit especially hard. New Yorkers age 55 and older who lose their jobs are out of work for an average of one year, compared to 41 weeks for younger employees.

To highlight the value of older employees, last week the City Council passed a resolution I wrote encouraging New York City employers to hire older workers.

Older employees face a longer, more frustrating job search. To give one example: Pamela, now in her mid-50s was a business manager for nearly three decades when the recession hit. She was laid off and still has not been able to find full-time work. On interviews, Pamela hears the same feedback: her skills are great, but she is "overqualified." One interview was cut short after Pamela revealed the year she graduated from college.

William is in his mid-60s and worked in the New York City fashion industry for more than 40 years. Booking jobs has gotten increasingly tough. Employers like his resume, but repeatedly say he is "overqualified." After 20 interviews without any offers, William has concluded his age is a factor.

Older women and minorities in particular are struggling to find employment. A recent Community Service Society study found that women aged 55 to 64 who are laid off are out of work longer than any other group in New York City. In 2010 the jobless rate for older black and Asian workers was well above the national average. These numbers don't account for the seniors who give up looking for work, or those forced to take jobs with lower pay and fewer benefits.

Retirement at age 55 is not an option for many Baby Boomers. With pensions shrinking and expenses increasing, more seniors have to continue working to survive. More must be done to help them get back into the workforce.

Part of the solution is changing the way companies view older employees. There is a perception that hiring seniors will cost more and they won't be able to perform the necessary work. In reality, older workers offer a wealth of experience and opportunities for intergenerational collaboration.

The Vita Needle factory in Needham, Mass. has become somewhat famous for its embrace of a mature workforce. With an average employee age of 74, the company expects to bring in some $11 million in gross sales this year. And what is good for the company is good for the community. In addition to the needed paycheck, the job gives these older workers a sense of purpose and belonging, leading to fewer calls on government and charitable resources.

Here in New York, the drugstore chain CVS is trying to attract senior employees by offering classes to help with the online application process. Companies including Google, AT&T, and Toys R Us have signed an AARP pledge to recruit workers from across diverse age groups.

Of course, some seniors need more training opportunities to help them re-enter the job market. The New York City Department for the Aging administers the Senior Employment Services (SES) program, also known as Title 5, which helps older workers with computer classes, job placement, and on-site training, while they earn a subsidized income. Seventy-nine percent of participants have successfully kept their jobs after the program ended. But severe cuts in federal funding have left SES with fewer slots and a long waiting list.

To be sure, job creation efforts should benefit New Yorkers of all ages. But with the senior population expected to double over the next 30 years, this group deserves special attention. They're ready to work; they just need a chance. With the right opportunities and training, older New Yorkers can help shape our 21st century economy in a positive way.

Don’t Sign Away Discrimination Claims to Get Severance Pay

1/2/2013 by Michele Bowman, Lawyers.com

Trinity Health Corporation on Dec. 20 settled charges brought by the EEOC over the employer’s alleged policy of denying or delaying severance to employees who file discrimination charges after leaving their jobs.

In general, employers cannot punish employees who exercise their right to file discrimination charges with the EEOC – it violates Title VII of the Civil Rights Act of 1964, which defines unlawful employment practices.

But Becky Thompson’s case is not as simple as it sounds, according to employment lawyer Rich Cohen, who wrote about the case on his firm Fox Rothschild’s Employment Discrimination Report.

Trinity on EEOC’s Radar

In the settlement, Trinity agreed to stop the practice and pay $25,000 to an employee whose severance had been withheld after she brought charges to the EEOC, according to the agency.

“Additionally, Trinity agreed that it will not in the future require employees to choose between receiving severance benefits from them or relief through the EEOC process as a condition of receiving their severance payments,” said the EEOC.

This is not Trinity’s first unpleasant brush with the EEOC. The agency sued the health company in 2011 for sexual harassment and retaliation. Trinity permitted employee Deborah Chisholm to be sexually harassed and then fired her when she complained about it, according to the EEOC. That case is still apparently active.

Common Worry over Signing Agreement

While it’s clear that employees can always file discrimination charges even if they sign a severance agreement, they often worry that the severance payment will be yanked if they decide to file with the EEOC – as it was in Thompson’s case.

“It can be yanked,” Cohen tells Lawyers.com, “but it’s not likely” – especially if you have a good case against the employer for any type of discrimination. Employers often rely on the fact that employees don’t know their rights or just need the money so much that they will sign anything.

“Most of the time, a well-counseled employer will have someone sign an agreement with a release for every possible claim. In order for that to be enforceable, the employer has to give the employee more than they would be otherwise be entitled to under its severance policy,” says Cohen.

What that means is that if your employer is only offering you the standard severance that the company provides for and nothing extra, it cannot require you to waive your right to file claims in order to get the severance money. If it does, you will have a retaliation claim to add to any other claims you might have against it.

When to Take the Money and Run

For a severance agreement’s release to be enforceable against an employee, it must offer her something in exchange for releasing those claims ­– which can be worth a lot of money – and it should be a substantial amount.

If your employer’s standard severance policy is to offer departing employees one week’s pay for every year worked, for example, and you worked for five years, your employer must offer you more than $5,000 in the severance agreement in order for it to be enforceable against you.

A lot of people don’t know this, but if there is a standard severance policy in place, you are entitled to that money regardless of whether you sign the severance agreement or not, says Cohen.

“If you have a good claim, don’t sign it away,” Cohen says. Know what your company’s severance policy says. And if they offer you too little money essentially “in exchange” for your potential claim, you can refuse to sign the agreement, demand your severance, and still file the discrimination claim.

Friendly Fire: References

Taken from Workplace Fairness Blog, week of December 10, 2012

What's the big deal with references during a job search? You sign up a few people who are your biggest cheerleaders and give their names to prospective employers. A recent study of hiring managers made an amazing discovery, 62% of references didn't say good things about the applicant. 62%! This is the workplace equivalent of friendly fire. And remember, these are mostly names that applicants supplied. Which reminds me of a hiring manager that I met years ago. He used an interesting strategy when checking references. He'd call outside of normal work hours and leave a message for the reference. He'd say, "Call me back if you think this person is outstanding." He claimed that people who felt that way would always call back. Those that didn't, didn't.

Not only didn't most of the references say good things, according to the study, the vast majority didn't help the person applying for the job. Only 23% had a more favorable opinion after talking with a reference, while 67% were either neutral or negative after the conversation. Ouch. Here are four steps to ensuring that your peeps help you.

List. You need to go back over every job you've had. Really think long and hard about every boss, coworker, vendor and customer that you worked with. With Facebook and Linkedin, these people are often easy to track down today. Make a list.

Talk. You should never list a reference without talking with them first. Of course, you should start by asking for their permission. If they hesitate, don't push it. They're probably sending you a message that they won't be favorable. If they agree, then ask if you can ask a few questions. Don't make them softballs. Ask probing questions like "What are their red flags?" "Would you hire them again?"

Rank. I'm always concerned about "reference fatigue" with people that I want to vouch for me. If I'm in full job scramble, I could be applying for five or more positions at one time. The last thing you want is for your best references to be flooded with calls. That's why it's so important to divide them into three groups, your A's, B's and C's. Save your best guns, the A's, for the most important opportunities.

Coach: As someone who has been a reference, I really appreciate a quick email updating me when someone is applying for a job and how I can help. Knowing that the company is potentially concerned about a specific topic or issue helps me prepare for their questions and puts me in a better position to address them.

For many years the business literature was full of stories saying that fear of a lawsuit prevented many employers from giving anything more than name and dates of employment when called for a reference. With 62% of references not saying good things about applicants, clearly this concern isn't holding people back from expressing how they really feel. Use these reference strategies and you'll get the right kind of callbacks.

Workzone: Discriminatory job practices working against older workers

By Patricia Sabatini / Pittsburgh Post-Gazette 

It isn't easy to grow old gracefully. But for people 55 and older who want to continue in the work force, the realities of advancing age can be especially harsh.

Simply put, negative stereotypes about being less productive, having dated skills and being adverse to change stop many companies from hiring older workers. Employers also worry about higher health care costs and how long older workers will stay on the job.

"Age is a factor that has been working against older workers for a long, long time," said Sara Rix, strategic policy adviser for AARP, the advocacy group for seniors.

"Employers express concern about technological competence of older workers and their ability to learn, even though we know that the ability to learn even complicated new technologies continues well into old age."

It's illegal for companies to discriminate based on age, but it's a hard thing to fight.

"You don't know what is going through a manager's or employer's head as that person is reviewing resumes," Ms. Rix said.

Even though workers face age discrimination, Americans' traditional retirement age has been steadily moving up. In 1985, 18 percent of all 65- to 69-year-olds were still working. By 2005, that figure had risen to 29 percent, Ms. Rix said.

For older workers who aren't ready to hang up the lunch pail for good, experts offered some advice.

Assuming it will be easier to keep a good job than to find another one, older workers may want to concentrate on making themselves more valuable to their current employer to avoid getting the boot.

To show flexibility and adaptability, volunteer for new projects, Ms. Rix said.

When employees make the boss's life easier, "their value skyrockets," said Kathleen Brush, author and corporate management advisor. "If the boss needs help meeting a tight deadline, don't wait for him to ask for volunteers."

Older workers should resist the temptation to slack off, Ms. Brush said. And avoid being too negative.

"Employee malcontent infects the work environment and takes a bite out of everyone's productivity. That will make the boss miserable," she said. "Rule No. 1, never forget who signs your paycheck."

Older workers should be especially vigilant about keeping their skills fresh, experts said.

"I always recommend they take advantage of any employer-provided training offered," Ms. Rix said. "Older workers can prove they are capable and interested in learning new ways of doing things."

People set on leaving their current job should avoid walking away until they have a new one in hand, she said. "The longer you are unemployed, the harder it is to find a job, and older workers are more likely to be long-term unemployed."

For those deciding to move into a new field, it's a good idea to survey the local labor market to gauge demand. Changing careers later in life can be especially exciting and fulfilling.

"I remember a woman who had been a teacher and became a pilot for a small airline in Guam," Ms. Rix said.

Although many jobs today are advertised online, don't forget to take advantage of networking, she said.

"Who you know can still be a big help finding a job."

For information on age discrimination, visit www.eeoc.gov/laws/types/age.cfm Patricia Sabatini: psabatini@post-gazette.com or 412-263-3066.
First Published December 23, 2012 12:00 am

Age Discrimination: Older Workers Worry About Hiring Bias

By:  Ann Brenoff, posted in The Huffington Post, October 8, 2012

In the first 919 days that Jim Pawlak was out of work, he sent out 908 resumes and was called for fewer than 50 interviews. He has just one explanation: age discrimination. It's a "first to be fired" and "last to be hired" syndrome, said the 48-year-old former Xerox employee.

The unemployment rate for older workers (those age 55+) remained unchanged at 5.9 percent in September, the Labor Department announced last week. But workers over age 55 made up 54 percent of the long-term unemployed -- defined as people out of work for more than 27 weeks -- up from 50.9 percent in August, according to an analysis by the AARP Public Policy Institute.

Moreover, older Americans stayed jobless longer -- an average of nearly 56 weeks, compared to 37 weeks for younger workers. When they do find jobs, these employees typically take a bigger pay cut than their younger counterparts, according to a Government Accountability Office study released earlier this year.

The Age Discrimination in Employment Act of 1967 (ADEA) protects people 40 and older from employment discrimination based on age, and applies to both employees and job applicants. Age discrimination now accounts for nearly one-quarter of all complaints filed with the Equal Opportunity Employment Commission. An AARP survey found one-third to one-half of baby boomers had experienced age bias in a job search.

Pawlak, who lives in a Chicago suburb, worked for 20 years for Xerox, mainly in customer service/sales support, before he lost his position in a company-wide layoff in 2008. Since then, he's traveled the job-hunting circuit, picking up freelance or contract work, but nothing on staff. He answers every ad he sees, despite knowing what a black hole Internet postings can be, and has learned to be cautious about stating salary expectations. He recalls taking an hour to apply online for a position, pausing at the box where it asked for desired salary.

"I decided to go for it and put down a figure that was about three-quarters of what I had been earning," he said. The automatic email rejection came within 15 minutes. "They saw my salary expectation and bam! -- end of their interest in me," he said.

Pawlak recently worked for 14 months under a $20 an hour contract and by all accounts, he said, performed well and was well-liked. But when the position was made full-time, it went to a recent college graduate. Had they offered it to him at the salary they paid the new graduate, he said, he would have taken it. "But they never asked me," he said. "Why not?"

He answers his own question in his next breath: "They assumed I wouldn't want it because of the pay."

The GAO report cites several studies that explain why companies favor younger workers: They typically earn less; employers expect they'll have less of an impact on health care costs; and they won't have an issue working for a younger boss. Employers also worry that older workers' technical skills are out of date, and, since they're obviously closer to retirement, they'll bail faster.

Older Americans who confront that bias will have a tough time pursuing relief. A 2009 Supreme Court decision made it more difficult for older workers to prove claims of illegal bias based on age. In response, Republican Senator Chuck Grassley and Democratic Senators Tom Harkin and Patrick Leahy have introduced the “Protecting Older Workers Against Discrimination Act” -- which eight in 10 older voters support, according to the AARP.

Meanwhile, some post 50s have experienced ageism not from employers, but co-workers. Lisa Bolivar is a journalist and writer based in Florida. "I'm 52 and look my age," she said.

Nevertheless, she was stunned when a younger colleague at a website where she worked under contract told her quite matter-of-factly that "people like you shouldn't be here."

"People like me?" Bolivar responded.

"Old people," said the 20-something.

Bolivar, who was embroiled in a pay dispute at the time and ended up leaving the company after nine months, said she never reported the comment to her supervisor or anyone else. Suing isn't her style, she said, and the comment wasn't why she left the job. "But it was ageist -- absolutely," she believes.

As they struggle with long-term unemployment, older Americans are doing what they can to get by. An AARP Public Policy Institute report released last month 69 percent of older Americans had slashed expenses; 57 percent of workers had tapped savings; 52 percent delayed medical or dental treatment; 37 percent stopped saving for retirement; 35 percent used credit cards to pay for daily living expenses; and 18 percent took distributions from their retirement accounts.

Pawlak credits his wife's job and money-management skills with keeping them financially afloat. By using savings, they have been able to keep their credit pristine and qualified to refinance their house at a lower interest rate. Their 24-year-old hearing-impaired daughter works as a grocery clerk and lives with them.

"She can't afford to move out and be on her own," he said.

"We've made so many cuts just to make ends meet," said Pawlak, an amateur photographer who has launched a side

business, Pixel Perfect Memories, which restores and transfers photos, negatives and slides into digital media. "I am in the process of reinventing myself. I have to wonder, at the age of 48, have I become obsolete in the new world order? I really don't know anymore."

Supreme Court Struggles Over Workplace Harassment Standard

By Jonathan Stempel

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.

SLIDING SCALE

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.

INCOMPLETE ANSWER

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)

U.S.

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.

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."