Employment Law Attorneys
Age Discrimination in Employment: A Most Invisible Prejudice…

Age Discrimination in Employment: A Most Invisible Prejudice…

By Chris Avcollie

Age Discrimination in Employment: A Most Invisible Prejudice… In some ways, Western culture teaches us to honor and to respect our elders. The fifth Commandment in the Judeo-Christian tradition is: “Honor your father and your mother…” Exodus 20:1-21. But in many contexts, Americans are predisposed to hold negative views of older persons. In the workplace in particular, many people erroneously associate advanced age with incompetence, unreliability, and a lack of productivity. While few hold generalized dislike for older people, many hold false subjective beliefs about the negative effects of aging on workers.  Indeed, 6 out of 10 older workers have recently seen or experienced age discrimination in the workplace and 90 percent of those who have believe that it is a common fact of working life in this country.

Although federal law has prohibited age discrimination in the workplace for more than 50 years, the problem persists. Further, the problem is not going away any time soon. The Bureau of Labor Statistics (“BLS”) has projected that the oldest segment of the workforce will be by far the fastest growing segment over the next thirty years. While research shows that age does not predict ability or performance, employment decisions continue to be influenced by ageism. The subtle and pervasive manner in which business decisions can be influenced by these subjective prejudices about aging makes age discrimination a nearly invisible influence in our organizations. This article examines the legal protections against this most invisible prejudice.

Overview of Legal Protections Against Age Discrimination in the Workplace.

The most widely utilized legislative protection for older workers is the Age Discrimination in Employment Act of 1967 (“ADEA”).  Congress enacted this law to prohibit age discrimination and to promote the employment of older workers. Along with the Equal Pay Act of 1963 and the Civil Rights Act of 1964, these laws laid the foundations of equality that we now expect in the American workplace.

Age discrimination in the workplace involves treating an applicant or employee less favorably because of his or her age. This type of discrimination is called “disparate treatment.” When it enacted the ADEA, Congress recognized that age discrimination was caused primarily by inaccurate assumptions that age negatively impacts work performance. To prevent such arbitrary discrimination, the ADEA requires employers to consider individual ability rather than false assumptions about age in making employment decisions.

Congress had initially considered including age discrimination in Title VII’s prohibitions against racial, ethnic, and gender discrimination. After commissioning a detailed report on age discrimination (the “Wirtz Report”), it concluded that age discrimination derived mostly from unfounded assumptions about decline in the ability of older workers. This was in contrast to workplace discrimination based on race, gender, national origin, and religion, which derived from feelings of dislike or opinions of inferiority about people entirely unrelated to their ability to do their job. Although Title VII would remain a close parallel to the ADEA, these findings led Congress to enact the ADEA as a separate statutory protection.

The ADEA applies to a wide range of employers, including private employers with 20 or more employees as well as state and local governments, employment agencies, labor organizations and the federal government. The Equal Employment Opportunity Commission (“EEOC”) is an administrative agency that enforces the ADEA and other federal discrimination statutes. An administrative charge must be filed with the EEOC within 180 days of a violation. The EEOC investigates and determines whether age discrimination occurred in a given case.

The ADEA prohibits age discrimination against people who are age 40 or older. The law prohibits discrimination in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, benefits, and any other term or condition of employment. It does not protect workers under the age of 40, although some states have laws that protect younger workers from age discrimination. It is not illegal for an employer or other covered entity to favor an older worker over a younger one under the ADEA, even if both workers are age 40 or older. General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581 (2004). Discrimination can occur under the ADEA when both the victim and the person who inflicted the discrimination are over 40, provided there is a significant age difference between the two.

While disparate treatment based on age is clearly prohibited under the ADEA, an employer may discriminate based on factors that are merely correlated with age such as seniority or pension eligibility. There is no disparate treatment under the ADEA when the employer’s adverse decision is motivated by some factor other than the employee’s age.

In addition to discrimination based on disparate treatment, the ADEA makes it unlawful to harass a person because of his or her age. Harassment can include, for example, offensive or derogatory remarks about a person’s age that are frequent or severe enough to create a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

The ADEA also prohibits policies that appear age-neutral but have a disproportionately negative impact on older workers. Such policies are unlawful unless they are based on, “reasonable factors other than age” (“RFOA”). Further, the ADEA also makes it unlawful for an employer to retaliate against an individual for filing a charge or for opposing employment practices that discriminate based on age or for testifying at, initiating, or participating in any way in an investigation, proceeding, or litigation under the ADEA.

The ADEA generally makes it unlawful to include age preferences, limitations, or specifications in job notices or advertisements. A job notice or advertisement may specify an age limit only in the rare circumstances where age is shown to be a “bona fide occupational qualification” (“BFOQ”) reasonably necessary to the normal operation of the business. The ADEA does not explicitly prohibit an employer from asking an applicant’s age or date of birth. However, such inquiries may discourage older workers from applying for the position or may otherwise indicate possible intent to discriminate based on age.

In 1990 Congress amended the ADEA when it enacted the Older Workers Benefit Protection Act (“OWBPA”). The 1990 amendments specifically prohibit employers from denying benefits to older employees. Congress recognized that the cost of providing certain benefits to older workers is greater than the cost of providing those same benefits to younger workers, and that those greater costs might create a disincentive to hire older workers. The OWBPA also set specific requirements that limit the circumstances under which an employer can require its workers to waive their rights under the ADEA.

In addition to the protections of the ADEA under federal law, most states and many municipalities have enacted similar anti-discrimination laws that prohibit age discrimination. Today, nearly every state except South Dakota has a law specifically prohibiting age discrimination in the workplace. Forty-three state laws include age within their omnibus anti-discrimination laws, meaning the same standards and damages apply in age cases as they do in other state law discrimination cases. Thirty-two state laws provide for either compensatory and/or punitive damages, with 21 states providing for both. In most cases the state law protections afford greater coverage, more reasonable standards of proof, and potential for more extensive damages than the ADEA.

For example in Connecticut, the Connecticut Fair Employment Practices Act (“CFEPA”) prohibits employers from discriminating against employees or applicants on the basis of age unless a BFOQ exception applies. Conn. Gen. Stat. Sec. 46a-60(a)(1). Unlike the ADEA, the CFEPA does not specify an age limit for covered employees. The statute applies to all employers of three or more employees. Similarly, in New York, the New York Human Rights Law (“NYHRL”) prohibits age discrimination in employment against individuals 18 years of age or older. The law covers employers with four or more employees (NY Exec. Law Sec. 296 et seq.). These state statutes generally provide greater protections than the ADEA and cover many more small businesses and organizations than the federal statute.

While our collective understanding of aging, work, and discrimination has changed, ageist assumptions still drive many employment decisions. The ADEA and its state law counter-parts are an effective tool to combat this financially, economically, and emotionally devastating practice. But how do these laws actually work?

  • Elements of an Age Discrimination Case.

The ADEA provides that “it shall be unlawful for an employer … 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.” 29 U.S.C. § 623(a)(1). While the goals of the ADEA are clear, how does the Act actually achieve that goal? What exactly does one have to prove to bring a successful claim of age discrimination under the ADEA?

While the various types of age discrimination claims (discussed in more detail below) have slightly different standards, the most common type of age claims are disparate treatment claims based on circumstantial evidence. These are claims involving older workers being treated unfavorably as compared to their younger colleagues where the evidence of the mistreatment must be inferred from the circumstances as opposed to direct evidence of discrimination. These claims are governed by a burden-shifting framework set out in the landmark U.S. Supreme Court case McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Under the framework set up in McDonnell Douglas, a plaintiff bringing an age discrimination case must produce certain evidence at various stages of the case in order to succeed.

First, the plaintiff (employee) must bear the initial burden of raising a small amount of evidence sufficient to establish a basic claim of discrimination. This basic evidence is called the “prima facie case.” If the plaintiff succeeds in raising this basic evidence, the burden shifts to the defendant (employer) who must raise a basic legal justification for the adverse action it took against the employee. This basic legal justification is called a “legitimate non-discriminatory reason” for its action. If the defendant is able to give this basic lawful reason for what it did, the plaintiff then has to show that the employer’s reason was false and that the real reason for the action was discrimination based on age.   Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 105-106 (2d Cir.2010).

In order to make a prima fascie case, the plaintiff must show evidence supporting four facts:

  • she is a member of a protected class (i.e. over 40 years old);
  • she is qualified for her position and was performing adequately;
  • she suffered an adverse employment action (termination, lost promotion, etc.); and
  • the circumstances of the case give rise to an inference of discrimination.

Id. At 107.

The plaintiff’s burden at this stage of the case is not heavy. The fourth prong of the prima facie case can be satisfied by a variety of facts, including some evidence of the employer’s negative comments about others in the plaintiff’s protected group, more favorable treatment of others not in the protected group, or even the fact that the plaintiff was replaced by someone outside of the protected group. Id.  Next, the defendant must satisfy its burden to produce evidence of a legitimate non-discriminatory reason for its action. The defendant’s burden is also not very heavy at this stage. While the defendant must produce some evidence to support its actions, the evidence does not need to be persuasive. The defendant may meet its burden by showing some evidence that the plaintiff was a poor performer or violated some company policies, for example, or that she was not qualified for the position in question.

Finally,  if the defendant can produce a legitimate reason for its actions, the burden then shifts back to the plaintiff to prove that the defendant’s stated reason for the adverse action was in fact a “pretext” or “false reason” and that the true reason was age discrimination.  At this stage, the plaintiff’s burden becomes heavier as she must prove by a preponderance of the evidence (i.e. “more likely than not”) that age was the direct (or “but-for”) cause of the adverse action.  Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009). If the plaintiff is successful in showing that age was the cause of the employment decision at issue, she will have proven her case under the ADEA.

Evidence of Age Discrimination.

When a plaintiff raises a claim of age discrimination under the ADEA, how much evidence must she produce in order to prevail? What kind of evidence is effective and what kind is not? The first standard a plaintiff employee must confront in an ADEA case is the “but for” causation standard. In Gross v. FBL Financial Services, Inc., 557 U.S. 167, 177–78 (2009), the United States Supreme Court held that to establish a disparate-treatment claim under the plain language of the ADEA, a plaintiff must prove that age was the “but-for” or sole cause of the employer’s adverse decision. Id. Prior to this decision, an employee under the ADEA could prevail even where the illegal age discrimination was one of several motives for the adverse employment action. Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). Thus, under current federal case law an employee must prove by a preponderance of the evidence that age discrimination was the sole and direct motivation for the employer’s adverse actions against her. “Gross makes clear that a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove…that age was the ‘but-for’ cause of the challenged adverse employment action and not just a contributing or motivating factor.” Wagner v. Bd. of Trustees for Connecticut State Univ., No. HHDCV085023775S, 2012 WL 669544, at 10 (Conn. Super. Ct. Jan. 30, 2012). Gross did not, however, reject the McDonnell Douglas burden-shifting framework for ADEA cases altogether.” (Internal quotations omitted.)  Gorzynski, at 106. This “but-for” causation standard is a much more difficult standard to meet than that which applied for much of the history of the ADEA.

Given this difficult federal “but-for” standard, plaintiffs in age discrimination cases are wise to consider bringing age claims under state rather than federal anti-discrimination statutes which often provide a more reasonable standard of proof. For example, in Connecticut, under the CFEPA, state courts have held that the more onerous “but-for” standard does not apply to state age discrimination claims and that the discriminatory motive need only be one of the motivating factors of the adverse action. “This court has also rejected an invitation to apply the ‘but for’ test to state age discrimination claims.”  Gonska v. Highland View Manor, Inc., No. CV126030032S, 2014 WL 3893100, at 8 (Conn. Super. Ct. June 26, 2014). Thus in Connecticut and a number of other states, employees have a better chance of prevailing under state rather than federal law. A plaintiff in Connecticut for example only has to prove that age was one of several motivating factors in the employer’s adverse decision.

Once the applicable standard of causation is determined, the employee plaintiff must determine whether she can produce direct or indirect evidence to support her claims. Direct evidence is usually either a document or the testimony of a first-hand witness that attests explicitly to the discriminatory intent of the employer. An example of direct evidence of discrimination might be a memorandum instructing a manager to terminate all employees over the age of 55.  This type of evidence is of course very rare. “Direct evidence of discriminatory treatment is evidence showing a specific link between the alleged discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the adverse action.” United States v. Hylton, 944 F. Supp. 2d 176, 187 (D. Conn. 2013) (internal quotations omitted), aff’d, 590 F. App’x 13 (2d Cir. 2014).

Indirect evidence, often referred to as “circumstantial evidence” is evidence that tends to prove a key fact by proving other facts.  Indirect evidence of discrimination does not provide direct proof but uses other facts to demonstrate that according to logic, common sense, and experience, discrimination must have been the motive for the employer’s action. An example of indirect evidence would be testimony that a manager terminated all of the employees over age 55. While there could be other reasons why the manager took this action, the fact that she retained all of the younger workers creates an inference that age was the motivation for the terminations. The law makes no distinction between the weight or importance to be given to direct or indirect evidence. The jury must weigh all of the evidence and the decision should be based on the preponderance of the evidence. The “preponderance of the evidence” is the sum total of facts that the jury believes is more likely true than not true.

“Because direct evidence of discrimination—a ‘smoking gun’ … attesting to a discriminatory intent…is typically unavailable, plaintiffs and courts ordinarily proceed by way of the three-part burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).” Holtz v. Rockefeller & Co., 258 F.3d 62, 76 (2d Cir. 2001). As outlined above, the McDonnell Douglas analysis is an orderly method of presenting and examining evidence in the large majority of discrimination cases where direct evidence is unavailable. But when a plaintiff presents direct evidence of discrimination, the McDonnell Douglas burden-shifting analysis becomes unnecessary. See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985). Once an employee provides direct evidence of age discrimination, the burden of proof shifts to the defendant employer to show that they would have made the same decision regardless of discriminatory intent. Fair Hous. Justice Ctr., Inc. v. Cuomo, 2018 WL 4565152, at 11 (S.D.N.Y. Sep. 24, 2018) (internal quotations omitted). If the defendants are able to meet their burden, then, to overcome that showing and to meet her ultimate burden, the plaintiff must show that the discrimination was nevertheless a but-for cause of the adverse employment action. Beckhorn v. New York State Dep’t of Corr. & Cmty. Supervision, No. 18-CV-1452, 2019 WL 234774, at 5 (W.D.N.Y. Jan. 16, 2019).

It is important to understand that even where a plaintiff employee cannot produce direct “smoking gun” evidence of age discrimination, she can meet her burden under a McDonnell Douglas analysis by showing that the employer’s legitimate non-discriminatory reasons are in fact false. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). If the plaintiff offered evidence establishing a prima facie case and evidence showing that the employer’s articulated reason is pretextual, the jury may find for the plaintiff. Id. at 148. The plaintiff is not required to introduce additional evidence to prove pretext. Id. Evidence of pretext, however, is not enough on its own. Not only must the jury disbelieve the employer’s reason for its actions it must also believe the employee’s reasons (age discrimination). Where the prima facie case combined with evidence of pretext provides evidence of intentional discrimination, the jury is free to conclude that the “legitimate reasons” for the employment action have been eliminated and it is more likely than not that the employer (who we generally assume acts with some reason) based his decision on an impermissible age consideration.

Are ageist comments made by employer’s decision makers strong evidence of age discrimination? It depends on the context and the comments themselves. Some comments are considered “stray remarks” and are not given much evidentiary weight. Other remarks are probative of discrimination and may reveal unlawful intent. “Verbal comments constitute evidence of discriminatory motivation when a plaintiff demonstrates that a nexus exists between the allegedly discriminatory statements and a defendant’s decision to discharge the plaintiff.” Silver v. N. Shore Univ. Hosp., 490 F.Supp.2d 354, 362 (S.D.N.Y.2007). A given ageist remark will be considered probative where it shows a strong link to the adverse employment decision at issue and where it shows a discriminatory state of mind. While a stray remark about age, without more evidence, is not enough to carry an age discrimination claim, where other indicia of discrimination are presented the remarks are no longer “stray” and a jury may conclude that the comments reflect discriminatory motives. Danzer v. Norden Sys., Inc., 151 F.3d 50, 56 (2d Cir.1998); See, Beckhorn v. New York State Dep’t of Corr. & Cmty. Supervision, No. 18-CV-1452, 2019 WL 234774, at 5 (W.D.N.Y. Jan. 16, 2019).

Types of Age Discrimination Cases.

While age discrimination in the workplace can take many forms, the cases which are actionable under the ADEA fall into one of several general categories.

Disparate Treatment

As discussed above, most age discrimination cases are based on the theory of disparate treatment. This type of discrimination is perhaps the most easily understood. It occurs when an employer treats one or more older workers less favorably than others because of their age. Proof of discriminatory motive is critical, although it can be proven by both direct or circumstantial evidence. In a disparate treatment case, liability depends on whether the employee’s age actually motivated the employer’s decision. This includes cases where the employer relied upon a facially discriminatory policy or where the employer was motivated by age discrimination on an individual basis.

Whatever the employer’s decision-making process, a disparate treatment claim cannot succeed unless the employee’s protected trait actually played a role in that process and had a determinative influence on the outcome. As discussed above, “but-for” causation must be proven.  GorzynskiSupra, at 107. A plaintiff employee may be subject to disparate treatment under the ADEA through violations by either explicit or constructive alterations in the terms or conditions of employment.

Disparate Impact

Claims based on disparate impact involve employment policies and practices that are facially neutral as to age but which, in practice, negatively affect the terms, conditions, or privileges of employment for older workers more than younger workers. The key distinguishing feature between disparate impact and disparate treatment claims is that the former do not require proof of discriminatory intent on the part of the employer. Thus, even where the employment policy creating the disparate impact was enacted without any discriminatory motive, the employer may be held liable for its unequal effect on older employees. Smith v. City of Jackson, Miss., 544 U.S. 228, 240, 125 S. Ct. 1536, 1544, 161 L. Ed. 2d 410 (2005).

Although the ADEA authorizes disparate impact claims; an employer’s policy or practice having a disparate impact does not violate the ADEA if the employer’s decision adopting the practice was based on a “reasonable factor other than age” or “RFOA”. Id.  The scope of disparate impact claims under the ADEA is therefore more narrow than under Title VII. See, Meacham v. Knolls Atomic Power Lab., 554 U.S. 84, 100, 128 S.Ct. 2395, 171 L.Ed.2d 283 (2008) (alteration omitted) (quoting Smith, 544 U.S. at 241, 125 S.Ct. 1536). The “RFOA” exemption precludes liability under the ADEA even when the “the motivating factor [for the action] is correlated with age.” Hazen Paper Co. v. Biggins, 507 U.S. 604, 611, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993). The “RFOA exemption from liability for disparate-impact claims under the ADEA is an affirmative defense, which means the employer bears the burden of proving that it applies. Mabry v. Neighborhood Defender Serv., 769 F.Supp.2d 381, 395 (S.D.N.Y. 2011) (citing Meacham, 554 U.S. at 93–94, 128 S.Ct. 2395).” Cerni v. J.P. Morgan Sec. LLC, 208 F. Supp. 3d 533, 542–43 (S.D.N.Y. 2016).

Hostile Environment/Harassment

Courts in a number of federal circuits have held that the ADEA’s prohibitions on discrimination in the, “compensation, terms, conditions, or privileges of employment, because of such individual’s age” (29 U.S.C. §§ 623(a)(1), 631(a)) also prohibit “requiring people to work in a discriminatorily hostile or abusive environment” based on age. Walsh v. Scarsdale Union Free Sch. Dist., 375 F. Supp. 3d 467, 488 (S.D.N.Y. 2019), quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (“Harris’’).   This type of hostile environment claim requires proof of additional elements besides membership in a protected class and adverse action: “To properly plead a hostile work environment claim, a plaintiff must allege that: 1) the harassment was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, and 2) that there is a specific basis for imputing the conduct creating the hostile work environment to the employer.” Walsh, at 488.

The hostile conduct based on age must be quite severe in order to be actionable. The employee’s workplace must be, “permeated with discriminatory intimidation, ridicule, and insult … that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Davis-Garett v. Urban Outfitters, Inc., 921 F.3d 30, 41–42 (2d Cir. 2019). The hostile environment based on age must be both objectively and subjectively severe or pervasive. In other words, it must be so severe that an average person would have found it offensive and the employee must have actually found it offensive herself. If the discriminatory conduct is “severe or pervasive” it is actionable. Green v. Town of E. Haven, No. 18-0143, 2020 WL 1146687 (2d Cir. Mar. 10, 2020).

Hostile environment claims differ from disparate treatment claims based on discrete acts (i.e. termination, demotion, unwarranted discipline) in that they involve repeated conduct over a period of time. Id. In hostile environment claims the unlawful discrimination does not take place on a particular day but rather it occurs over days, weeks, months or even years. Thus, in hostile environment cases, the jury or court may consider evidence of discrimination spanning years. Even behavior which is outside the statute of limitations might be considered as part of a hostile environment theory of age discrimination under certain circumstances. Id.

Just as in a disparate treatment claim, a mixed-motive theory of causation is impermissible in an ADEA hostile environment case. The plaintiff must prove age was the “but-for” causation for the harassment. Further, the employee must demonstrate that the hostile environment is imputed to the employer. Feingold v. New York, 366 F.3d 138, 150 (2d Cir. 2004). Generally, the plaintiff must show that the employer knew or should have known about the harassment but failed to take remedial action to stop it.

Unlawful Waiver of Rights Under the ADEA

As discussed above, the ADEA was expanded in 1990 when Congress enacted the OWBPA. An employer violates these 1990 amendments by improperly requiring an employee over the age of 40 to waive or surrender his or her rights under the ADEA.  Employers often seek waivers from employees upon separation of employment or in exchange for severance benefits. Waivers are common in settling discrimination claims or in connection with exit incentive or other employment termination programs. To be valid, the waiver must be knowing and voluntary on the part of the employee and must meet minimum standards including:

  • the waiver must be part of an agreement between the individual and the employer that is written in a manner calculated to be understood by the employee;
  • the waiver specifically refers to rights or claims arising under the ADEA;
  • the individual does not waive rights or claims that may arise after the date the waiver is executed;
  • the individual waives rights or claims only in exchange for consideration in addition to anything of value to which the individual already is entitled;
  • the individual is advised in writing to consult with an attorney prior to executing the agreement;
  • the worker has adequate time to consider the agreement as follows:

(a) the individual is given a period of at least 21 days within which to consider the agreement; or

(b) if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the individual is given a period of at least 45 days within which to consider the agreement;

(7)  the agreement provides that for a period of at least 7 days following the execution of such agreement, the individual may revoke the agreement, and the agreement shall not become effective or enforceable until the revocation period has expired;

(8)  if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the employer informs the individual in writing in a manner calculated to be understood by the average individual eligible to participate as to:

(a) any class, unit, or group of individuals covered by such program, any eligibility factors for such program, and any time limits applicable to such program; and

(b)  the job titles and ages of all individuals eligible or selected for the program, and the ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the program.

McCormack v. IBM, 145 F. Supp. 3d 258, 266–67 (S.D.N.Y. 2015).

The OWBPA regulations are not so much used as an affirmative basis for claims by plaintiff employees but rather as a counter-defense where defendant employers claim a defense of waiver in response to an ADEA claim. The OWBPA restrictions on waivers are strict and unqualified and employees may not validly waive an ADEA claim unless the employer complies with the statute. Id.

How Do I Recognize Age Discrimination If I See It?

While age discrimination remains very common in the workplace, it often goes unrecognized by both witnesses and those who are its targets. What type of behavior or circumstances should one be watchful for to spot age discrimination in the workplace? How does one recognize this invisible form of  discrimination? The following common workplace situations may indicate age discrimination:

  • Termination

Undeserved Termination: If you are terminated without a good reason, for a reason that does not make sense, under false pretenses such as a phony performance review, or for a reason that you do not believe.

Replaced by a Younger Worker: If you are terminated and your job is filled by a younger worker. If the company tells you that your position was “eliminated” but the job is actually being done by a younger person.

Suspicious Reduction In Force: You were laid off along with a number of other workers or in a large-scale “reduction-in-force” and most of the people selected for lay-offs are older workers.

  • Unequal Discipline/Privileges

Discriminatory Policies: Company policies that have a negative impact on employees based on their age.

Unfair Discipline: Where older workers are disciplined or written up for certain offenses while younger workers are not.

Favoritism: Older workers are excluded from meetings or workplace gatherings, or are given worse assignments, resources, and equipment.

Loss of Duties: Job duties are taken away from an older worker and given to a younger employee without good cause.

Unfair Evaluation: Older workers are held to different standards of performance than younger workers. Performance reviews suddenly decline after a certain age.

  • Promotions/Training

Failure to Promote: If you do not receive or are not considered for promotions due to age or are passed over for promotion in favor of a younger employee who is equally or less qualified than you.

Failure to Train: You are denied a training opportunity or a chance to develop new skills on the job while younger employees are afforded such opportunities for growth. Often technology skills training is denied older workers who are considered less apt because of age.

  • Hiring/Advertising

Refusal to Hire: If you are not hired for a position for which you are qualified, while younger workers who are less or equally qualified are hired for the job. Hiring employers may say they are looking for a candidate with “more energy,” or that they prefer someone with more “growth potential.”  Often the terms, “too experienced” or “overqualified” are used as well.

Job Advertisements: You are not hired for a job which contained an age preference which you did not meet. The ADEA makes this illegal except where age is a necessary factor for the position. Sometimes employers use code words like “enthusiastic” or “energetic” to attract younger workers rather than clear age preferences.

  • Harassment/Retaliation

Age Based Harassment: If your colleagues or superiors make frequent jokes or comments about your age, play age-based pranks, or otherwise treat you differently and single you out because of age. Ageist comments may not be directed squarely at you but may be pervasive in the workplace. If you are exposed to these comments they may be discriminatory and harassing.

Retaliatory Actions: After reporting some other form of age discrimination, the employer begins supervising you unnecessarily, writing you up for petty offenses not enforced against other workers, or changing your work duties or conditions.

  • Retirement

Forced or “Assumed” Retirement: If your company is pressuring you to retire because of your age. If there are suggestions, comments, discussions, or hints that it is time that you retire. Often retirement discussions are raised and the employer claims that he or she “just assumed” you would want to discuss retirement soon. Often when an employer reaches age 65 employers start removing job duties, grooming potential replacements or other activities in anticipation of an older worker’s retirement in which she might not be interested.

Requested Waivers: When employers request that you sign waivers or releases promising not to sue them in exchange for a bonus or continued employment. Any request that you waive or give up rights should be reviewed by your attorney before you sign as these might be illegal.

What Can I Recover in an Age Discrimination Case?

The financial and emotional harm caused by age discrimination on older workers and their families is significant. When an older worker loses a job, she will likely endure the longest period of unemployment compared to other age groups and she is more likely to take a significant pay cut if she becomes re-employed. The loss of a job has serious long-term financial consequences for older workers. Many must begin living off of retirement savings too soon and must postpone retirement or liquidate assets to get by.  Further, the emotional trauma of age discrimination can affect long term mental and physical health.

The damages available under the ADEA are different than those available under Title VII. An employee in an ADEA case may recover back pay, attorney’s fees, reinstatement or front pay, and liquidated damages in cases where the employer committed “willful violations” of the act. No punitive damages are permitted under the ADEA and compensation for the emotional distress caused by the illegal discrimination is not available. Meyers v. I.B.M. Corp., 335 F.Supp.2d 405, 411 (S.D.N.Y. 2004).

Back pay is the primary form of damages in age discrimination claims. Back pay covers the loss of wages and benefits the employee suffered from the time of the discriminatory action such as termination or demotion to the date the case is resolved either in or out of court. Equal Employment Opportunity Comm’n v. Kallir, Philips, Ross Inc., 420 F. Supp. 919, 923–25 (S.D.N.Y. 1976), aff’d sub nom. E.E.O.C. v. Kallir, Philips, Ross, Inc., 559 F.2d 1203 (2d Cir. 1977). Back pay calculations include the value of health insurance benefits, bonuses, and commission payments that he employee would have been entitled to had the discrimination not occurred.

Reinstatement or front pay is the form of damages used to compensate the employee for the lost wages and benefits she would have earned going forward from the date the case is resolved until she finds a job with equal or greater compensation. Walsh v. Scarsdale Union Free Sch. Dist., 375 F. Supp. 3d 467, 482–83 (S.D.N.Y. 2019). The most complete remedy is for the Court to order that the employee be reinstated to the position they lost at full pay and benefits. In some cases, this remedy is impractical because the relationship between the employer and employee has deteriorated beyond repair. In those cases, front pay is used to make up the difference between what the employee could have earned in wages and benefits at the defendant’s company had the discrimination not occurred and what she actually earned after losing the job. Whittlesey v. Union Carbide Corp., 742 F.2d 724, 727–29 (2d Cir. 1984).

For both back pay and front pay calculations, the employee is required to make every effort to obtain comparable employment. The plaintiff must “mitigate” or reduce her damages. This means the employee cannot just wait for compensation through the legal system. The plaintiff must seek and obtain the best job she can in order to reduce the amount of damages she suffers from the illegal discrimination. Courts look at the jobs that are available but declined by the plaintiff as well as the positions actually obtained.  The amount earned by the employee is deducted from the total damages. It is the employer’s burden to prove that the employee did not mitigate her damages. While wages and benefits earned are deducted from the total damage award, benefits such as unemployment insurance, social security payments, and pension benefits are not deducted.

While plaintiffs in age discrimination cases cannot recover compensatory (emotional distress) or punitive damages, they can recover liquidated damages in certain cases. “Liquidated damages” are similar to punitive damages in that they are awarded to punish “willful” violations of the ADEA. A claim for willful violation may be proven by showing that the employer either knew it was violating federal law when it took the adverse employment action or that it had a reckless disregard for the law when it acted. Liquidated damages are awarded as a “doubling” or multiple sum equal to the plaintiff’s award for back pay. Koyen v. Consol. Edison Co. of New York, 560 F. Supp. 1161, 1164–68 (S.D.N.Y. 1983).

A plaintiff who successfully prosecutes an age discrimination case is entitled to be compensated for her attorney’s fees and costs of litigation under the ADEA. The amount of attorney’s fees is calculated by the Court based on the time spent and hourly rates of the employee’s attorney. Even where the plaintiff signed a contingency fee agreement with her counsel, attorney’s fees are awarded based on an hourly rate calculated by the Court as reasonable based on the time spent, the experience and expertise of the lawyers and the prevailing standards for similar work in the local legal community. While it is rare for a plaintiff to recover all of the legal fees incurred, this category of damages is often very significant.

What Do I Do About Age Discrimination in My Workplace?

  • Keep Detailed Records and Notes: When it comes to proving any kind of discrimination, the devil is in the details. Keep detailed notes of meetings, interactions, conversations, or any event that may bear on your changing situation at work. If you report an incident to HR or a supervisor, follow up with an email memorializing the report and print it out and keep a copy for your records. If ageist remarks are made at a company training session, write down the date, time, the names and titles of those present, and a precise account of what was said and how people reacted. If a group of younger workers are selected for a training program, note the date of the announcement, who was selected, who made the decision and what the criteria were for selection. If an HR partner discusses “retirement options” with you when you did not ask about them, write down all of the details of the conversation and send a thank you email confirming the meeting took place and that retirement was discussed. Document information regarding your performance and achievements at work as “poor performance” is often a pretextual reason for firing older workers.
  • Report Suspected Incidents of Discrimination to HR: Ignoring the problem will not help. Report instances of ageism or discrimination to HR promptly. Do so in writing whenever possible and cite the company’s anti-discrimination policies if applicable. Create a paper trail. Send emails memorializing the report and keep copies. Follow up and be sure you avail yourself of all of the rights granted under company policies to receive a report of the investigation if any or any other documentation of your complaint. If you are not satisfied with the results speak to someone else in your reporting chain at the company and document that interaction as well.
  • Invest in Career Growth: Common stereotypes of older workers is that they are less sharp or ambitious than their younger colleagues. Defy that stereotype and document the activity. Keep on top of workplace and industry trends and technology. Invest in your own training and professional development. Keep up with company changes and industry standards. Keep records of all of this activity to demonstrate your professional currency should you become the target of ageist employment actions. Defy the stereotypes.
  • Seek Legal Counsel: Seek the advice of an experienced employment attorney as soon as you suspect that you may be a target of age discrimination. An attorney can help you more before the situation comes to a head and can be available to guide you if it does.
  • File Claims Promptly: If you are the target of age discrimination be sure that you properly file your claims of discrimination with the nearest office of the EEOC as well as the appropriate state anti-discrimination agency. If you have an attorney she will take care of that but you should be aware that there are strict time limits for filing age discrimination claims. If you fail to meet any state or federal filing deadline you could lose your right to bring certain claims.

As with all types of illegal employment discrimination, age discrimination can be devastating and overwhelming when you are the target. There is no substitute for skilled legal counsel when you are the subject of unlawful employment practices. Call the law offices of Carey & Associates, P.C. at (203) 255-4150 or send an email to info@capclaw.com for help with any suspected age discrimination in your workplace.

Employer Tactics Revealed: How Employers Use Age to Terminate Employees

Congress Refuses to Fix the Age Discrimination in Employment Act

The Covid-19 Catch-All: Why Your Recent Termination Might Have Been Unlawful

The Covid-19 Catch-All: Why Your Recent Termination Might Have Been Unlawful

A record 22 million people were laid off in one month since the coronavirus pandemic shut down large portions of the U.S. economy as of the week ending April 16, according to the Wall Street Journal. The estimated current employment rate is 13.5%.  But were all those layoffs really due to the corona virus or did employers use the pandemic as cover to get rid of employees for other reasons, maybe unlawful reasons.  This is the big question many unemployed Americans are now asking.  Please review the following frequently asked questions and see which applies to you.

FAQ:    Were you recently furloughed, laid off, demoted or terminated due to COVID, but your co-workers remain employed?

FAQ:    Is your Employer still operating and profitable, yet you were laid off or had your compensation reduced due to a business decision to reduce costs or eliminate your job position?

FAQ:    Were other younger employees retained, while you were furloughed, laid off, demoted or terminated?

FAQ:    Were you laid off or terminated and not offered any severance or insufficient severance?

FAQ:    Were your unemployment benefits interfered with?

FAQ:    If you were unable to continue to work because you were sick, because a family member was sick or because you have young children at home, were you permitted to take FMLA leave or were you instantly laid off or terminated?

FAQ:    Were you the only one furloughed, laid off, demoted or terminated or due to COVID, even though your Employer is calling it a “reduction in force”?

FAQ:    Do you think your Employer was looking for an excuse to get rid of you?

If you answered yes to any of the above, your seemingly straightforward COVID-based termination may be unlawful. Unfortunately, the majority of Employees in the U.S. are “at-will”. This means that employees are at the absolute and arbitrary whim of their employers and they may be demoted, terminated or otherwise treated adversely for any reason or no reason at all. The exception to the anything goes rule of an at-will employment arrangement is that employees may NOT be treated unlawfully.

If you have recently suffered an adverse change in the terms and conditions of your employment amidst the COVID-19 crisis, you may still have viable claims against your employer for unlawful or wrongful treatment. COVID-19 is not and should not be a catch-all excuse or defense for employers’ bad behavior and even a crisis of this magnitude does not relieve employers of their obligation to treat employees lawfully at all times. If something does not feel right to you about the circumstances of your change in employment, it is prudent to speak to an employment attorney and review the fact pattern surrounding your work situation. It is in your best interest to discern whether your employer may be using COVID-19 as a sham or cover for otherwise unlawful behavior.

Unlawful or wrongful acts that may entitle an employee to monetary damages for claims against their employer will usually fit in one of three scenarios. Employers actions can be shown to be unlawful if they:

              1) violate or fail to comply with any legislative mandate, act or

              statute;

              2) breach a valid contract or agreement; or

              3) discriminate, harass or retaliate based on a protected class trait.

COVID-19 does not give employers a green light to violate laws, ignore contracts or discriminate against employees, and a termination under any one of those scenarios might be a wrongful one.     

Scenario 1 – Statutory Violations:

Employers must abide by all existing laws and statutes, especially as they apply to the COVID-19 pandemic. It is the employers’ obligation to stay abreast of and comply with all new mandates imposed and legislation enacted in response to COVID-19, including, but not limited to enhanced FMLA, the CARES Act and the expansion to the Unemployment Compensation Act. This is in addition the existing laws that have long protected employees from discrimination and retaliation such as Pregnancy, Sex Harassment, Sexual Stereotype, Disability, Age, Whistle Blowing and Family Medical Leave, to name just a few. Thus, any analysis of whether your termination was lawful and proper should begin with a review of the facts relative to the controlling law and any revisions and updates to those laws. If you identify any facts in the events leading up to your termination that just do not seem right, you may have uncovered the hidden basis for your termination.  For example, you got a good review last fall and received a bonus in January, but in March you were terminated without explanation.  The small window between the January bonus and March termination should be closely examined for any facts supporting bogus performance issues, favorable treatment given to other employees and not you and replacement by coworker who is substantially younger and lesser qualified.  The examples are endless, but you get the gist. See further discussion below.

Scenario 2 – Breach of Contract:

Even an at-will employment arrangement must be considered in light of any existing employment contracts or agreements between the employer and employee. In addition to or in the absence of a formal written employment contract, Courts may look to such documents as offer letters, on-boarding communications, employee handbooks, published severance plans and emails in order to demonstrate the existence of any enforceable covenants between the parties that may speak to such topics as causes for termination, compensation, bonus, healthcare, long term incentive compensation and severance. Thus, where a valid contract can be established as to any of your employment terms, your employer is bound by those terms and any deviation may be an unlawful breach for which you might be able to seek and recover damages. So, if you have been terminated or otherwise caused to separate from your employer, even if you are at-will and even amidst the COVID-19 crisis, it is imperative that you review all of your documents in order to discern that you are being treated lawfully according to the terms that were agreed upon and promised to you.

Scenario 3 (THIS IS THE BIGGIE) – Discrimination Claims:

Even if you are an at-will employee who was let go as a result of COVID-19, you may still have a claim for wrongful termination against your employer if their decision to let you go was at all based on discriminatory motives. Discrimination is unlawful and where an adverse act is taken against you because of such protected traits as your age, gender, pregnancy, race or national origin, disability, perceived disability, associational disability or sexual orientation, you may have legal claims against your Employer.

In the absence of direct evidence of discrimination or the smoking gun as we call it, discrimination can be shown if you are a member of the protected class and you were treated adversely (demoted, furloughed, laid off or terminated) under circumstances which give rise to an inference of discrimination, i.e. circumstances that show discrimination was the substantial motivating reason for the adverse act taken against you. The way an employer can defend itself against such a claim and rebut that inference is to show that there was a “legitimate” lawful reason for the termination, such as performance issues and other cause such as a business decision or reduction in force.

Certainly, you can all see where this is heading. COVID-19 and the related financial fallout provides your employer with the legitimate business reason it needs to “lawfully” terminate you.  However, this cannot be accepted at face value. In fact, if you are able to show that the supposed legitimate reason relied on by employer was a sham or cover for discriminatory motives, you may prevail on your claims against them in a severance negotiation. There are surely many situations where an employer, especially during these challenging economic times, needs to make a tough business decision to lay off employees or institute a reduction of force, and where their decision to do so is legitimate and truthful.

Employer May Have Used Covid-19 As An Excuse to Fire You

However, there are also many instances where certain employees are selected within the context of a business decisions, based on discriminatory motives. For example, the company makes the “business decision” to lay off only the older employees, or only the female employees or only the pregnant employees. In addition, there might not even be any explicit or formal business decision to reduce costs or a effectuate a reduction in force, but your employer may still feel safe engaging in discriminatory behavior knowing or hoping that any terminations taking place now will be viewed as a necessary and legitimate, due to the Covid-19 business climate. Again, we cannot allow employers to use this catch-all defense to what maybe culpable and unacceptable discriminatory behavior.  If you see something, say something to an employment attorney.

There is no doubt that both employers and employees are presently finding themselves in the most difficult and tenuous circumstances. However, employers, in response to COVID-19, seemingly have absolute power and new founded legitimacy to make discriminatorily targeted employment decisions against their at-will employees, under the guise of a business decision. And this is very concerning and unlawful. If you are in a protected class because you are over the age of 40 or fall into any of the other class of protected traits discussed herein, and have seen a change to your employment that you do not believe was made as the result of a good faith business decision, cost reduction, reduction in force in response to COVID-19, or other legitimate basis, we encourage you to speak to an employment attorney immediately. You may be entitled to reinstatement, severance or increased severance or settlement dollars relative to your discrimination claims for wrongful termination or other possible improper acts by your employer.

Carey & Associates, P.C. is currently providing complimentary consultations for potential new clients who are experiencing any employment related issues or believe they might have possible employment claims, as a result of the COVID -19 pandemic. Feel free to contact our office if you need help with that or any of your employment matters.

Protecting Your Job During Coronavirus Two Things Employees Should Look Out For

Protecting Your Job During Coronavirus Two Things Employees Should Look Out For

By Liz Swedock

Protecting Your Job During Coronavirus Two Things Employees Should Look Out For. COVID-19 is interrupting everyone’s lives these days, worldwide, and for many of us it is negatively impacting our jobs.  Even while we are trying to achieve the work-from-home revolution, an unprecedented number of workers are experiencing frightening job stressors, including drastically reduced workload, changes in job responsibilities, dropped job responsibilities, and job loss.  While not every negative impact can be fixed, there are a few legal protections that all workers should be aware of.

Is your job being impacted in a way that is unethical, or possibly illegal?

The sad reality is that the global recession is going to quickly motivate employers to start firing people.  Businesses are panicked right now about their financial bottom line, and those salaries for all the people who aren’t in the office are looking daunting.  While it may be legal for employers to lay people off due to purely financial concerns, all employees should be their own watchdog for any layoffs, terminations, demotions, or changes in responsibilities that appear to be unfairly – or unequally – happening.

What is unfair or unequal?  Often the answer is discrimination.  These days most people are aware of the protected classes of employees.  They include older individuals (over 40), disabled individuals (physical or mental), gender, race, national origin, religion, and others.  It is illegal for employers to single out any of these classes of individuals for negative treatment.

It’s often not obvious if an employee is being illegally discriminated against, which is why workers should arm themselves with what to look for.  Sometimes illegal mistreatment is blatant, such as bullying and inappropriate remarks.  But it can also be done through much more subtle means, like removal of responsibilities, being taken off projects or sidelined, exclusion from important meetings, or old-fashioned favoritism.

We all know what’s coming.  As the economy is disrupted, companies are going to be forced to start eliminating employees.  So, keep your eyes and ears open and watch out for anything that seems wrong.  Did an entire project get cancelled or an entire team laid off?  That kind of activity might be perfectly legal.  However, does it seem like only the older employees or those with medical conditions are suffering the consequences?  Has your multi-gendered and multi-national team suddenly become, well, a lot less diverse? These types of selective actions could be crossing a line into illegal territory.

Are you being denied rights that you are entitled to, particularly medical leave or accommodations?

The headlines are warning us that a huge percentage of the population should expect to catch COVID-19, a/k/a Coronavirus.  This means that an even larger number of people can expect to be impacted by the virus, including if family members get sick.

If you or an immediate family member gets sick, you may be entitled to take medical leave while your job is protected – meaning, you cannot be demoted or fired.  Federally, the Family and Medical Leave Act (FMLA) guarantees employees up to 12 weeks of leave per year if you’ve been an employee for at least one year and worked a minimum of 1,250 hours over the prior year.  FMLA leave is unpaid, which means your employer is not required to pay you while you are on leave, but is required to hold your job for you until you return.  Any negative impact on your job, such as by giving your work away or demoting you because you took leave, is illegal.

In Connecticut, this protection is expanded to 16 weeks of leave for any employee who works 1,000 hours during the prior year.  In New York, since 2018, employees may be entitled to up to 10 weeks of paid family leave, up to 60% of their average weekly pay.  This is one of the strongest protections in the country.

Can you take FMLA leave any time you or a family member gets sick?  For a simple illness, such as a cold or the flu, the answer is usually no.  However, you are entitled to leave for any “serious health condition,” which is defined as “an illness, injury, impairment, or physical or mental condition” which involves  “inpatient care” or “continuing treatment by a health care provider.”  Sound confusing?  It is.  Put quite simply, it’s not a black-and-white rule about when legal protections kick in for any individual medical situation.  The bottom line is that if you, or a family member, has a medical problem that requires repeated, or ongoing, medical treatment, you probably qualify for protected leave.

It’s also important to know that individuals can take this medical leave in pieces, or “chunks.”  This is called “intermittent leave.”  What this means is that if you qualify for leave, but you can work sometimes, you can still be eligible for the protections provided under these laws, most importantly that you cannot be fired or demoted while utilizing your leave.  This is extremely important for people who have ongoing medical conditions that require short periods of treatment.

Lastly, every employee with a medical issue should understand how the law defines “disability” and what an “accommodation” is.  Legally speaking, disabilities can be temporary! You can be legally disabled if you have a medical condition that “substantially limits one or more major life activities,” and “major life activities” includes working.  Of course, this means that many people who qualify for FMLA medical leave will also qualify under the law as disabled.

So, what protections do you have if you are legally disabled?  A complete answer here would require far more space and time than I’m tackling in this article.  However, the short answer is that your employer is required to cooperate with you so that you can do your job.  In legal terms, this is called an “accommodation.”  If you can do your job with a reasonable accommodation, then it is illegal for your employer to fire you, demote you, or do anything else to hurt your employment.

Just like with medical leave, it’s different for each person.  However, an example how these legal systems work might be something like this – Person A contracts Coronavirus.  Unfortunately, person A has the aggressive symptoms of the virus and needs to be hospitalized for a week, and then required to quarantine at home for a few more weeks.  While they are hospitalized, Person A would be entitled to FMLA (and state) leave while they are in the hospital, and, most likely, while they have to self-quarantine at home.  At the same time, Person A would most likely also qualified as disabled.  This means Person A would have the following protections: the employer has to hold Person A’s job while person A is out, and, while Person A is recovering, the employer is required to offer Person A accommodations so that Person A can do Person A’s job.  In other words, Person A cannot be fired, and must be given options to enable Person A to perform the job.

The takeaway here is to know your rights and stand up for yourself! Don’t expect your HR department to know the law or give you good advice.  Even the most well intentioned employers or human resources people often don’t know how this process works, or what they are legally required to provide to you.  You need to speak to an employment attorney to get the right advice, especially now during this Coronavirus pandemic.

Protecting Your Job During Coronavirus Two Things Employees Should Look Out For. If you have questions or concerns about this article, please contact one of our employment attorneys at Carey & Associates, P.C. at 203-255-4150 or by email at info@capclaw.com.

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Several Great Reasons to Get Rid of the Employment At-Will Rule

Several Great Reasons to Get Rid of the Employment At-Will Rule

By Mark Carey

Several Great Reasons to Get Rid of the Employment At-Will Rule. What do you mean I can be fired for any reason or no reason at all? Who made up this rule? Why do I have to follow the employment at-will doctrine?  Well, you don’t and there are several reasons companies and employees should shift to a modified approach that satisfies the expectations of both the employer and the employee.

I can honestly say that over the past twenty-three years handling employment law cases for both executives and employees, my clients are really confused and bewildered by the employment at-will rule and the significant financial impact it creates when employers decide to let them go.  Many clients always state they understand the basic rule that they can be fired at any time and they can leave at any time.  But beyond that they know absolutely nothing about why the rule came into being or more importantly how they can negotiate around it.  When a termination occurs the adverse impact is clear, the uncertainty of the break in career trajectory and financial resources.

At the executive level, I routinely negotiate employment contracts that provide for termination “for cause” and “termination for good reason” by the executive.  This is standard in the industry at the executive level. However, I do confront the hybrid cases, where the employer “shoves” in the provision identified as “termination for any reason”. Well, that sounds like the employment at-will rule doesn’t it, because it is.  Enter the LeBron James Rule. (I made up this rule).  When negotiating employment contracts, employees needs to identify their leverage factor; it is what makes the employer throw money or equity in order to induce the hire.  LeBron James can write his own ticket to work wherever he finds the highest bidder, and he can demand the termination for cause and good reason provision with a severance payout.  Find your leverage and do not be shy about asserting it.

Well you might say not everyone is as fortunate as LeBron. I disagree and this is what has bugged me for many years.  We all too often knee jerk react and accept this stupid and ill-conceived rule that your employment is as good as the last minute or hour you just worked. Some say, just be grateful you have your job etc.  Give me a break!  There is a new way to handle this.

I propose getting rid of the employment at-will rule and replacing it with the modified form we see in executive employment contracts. Specifically, employees can be fired for cause or terminated by the employee for good reason. If the good reason event occurs, then the employer pays a severance amount to take care of some of the financial issues related to your transition to new employment.  If you land a job, your severance stops, as this is fair in an economic theory way of thinking.  “Termination for cause” means you violated the law and company policies.  “Termination for good reason” means the employer materially changed your title, salary, reporting structure, location of your office etc.

Now here are several positive effects of eliminating the employment at-will rule based on my research into this issue.

  1. Management vs. Everybody: Eliminating the employment at-will rule will get rid of the large divide between management and employees. Literally, this is the trust divide.  If you scare employees into believing they can be fired any time, management is not creating a loyal and trusting environment that spurs innovation and creativity which will push the company forward in profound economic ways.  Employers want employees to be focused on their work, but this rule is utterly distracting and frankly non-motivating. The rule erodes any semblance of entrepreneurial creativity among the team.  Employers need to seriously rethink this one.
  2. HR vs. Everybody: Honestly, did you really believe the Human Resources Department was there to help you. I make it my mission to point this out to every client I have. They (HR) have a duty of loyalty to the employer and have absolutely no interest in doing what’s right for you. By eliminating the employment at-will rule, employees will closer align themselves with HR and HR will do a better job of “caring” for the very employees that make up the company; without employees you have no company. Where did all those employers go astray?
  3. Eliminating Fiefdoms: Does your boss have their favorites? Do they hire from the last place of employment? Are there any “brown-nosers” in the team who believe the only way to the top is to “work it” what ever that means to you. It’s childish and it’s irritating to say the least.  You know what I am referring to.  Why do other employees do this and why do supervisors encourage it?  Eliminating the employment at-will rule will breed meritocracy, but not the type Bridgewater Associates thinks they are creating.  Employees will begin to feel compassion for their coworkers and work more closely as a team or family, instead of putting a knife in their back at work. Employees will work with management for the company common good; all will prosper together not just the few.
  4. Reducing Discrimination: If you create trust, honesty, transparency and vulnerability, then you create lasting relationships where employees want to stay and work.  Employment discrimination bias arises from many reasons, but my theory is that if you get rid of the employment at-will rule you will gut the walls that employees build in their work environments with the sole goal of getting ahead.  Think about it. If you say something or do something negative about another person to make yourself look better in the eyes of your employer, you will do it to get ahead.  That negative comment or idea could be motivated based on gender, age, race, religion or manipulation like seeking sexual favors in exchange for career advancement.  We need a sea change to course correct our current direction.  The status quo just doesn’t work anymore; although it may work for employment attorneys like myself as we are very busy policing this garbage.  If you see something, say something. Have the courage to speak out, you will be protected.

Finally, here is my shout out to older employees. If you are an older employee “we honor your wisdom and experience, you are worth every penny we pay you”.  Employees who are in their fifties and even sixties are well paid because they have many years of experience to offer, more than someone twenty years their younger.  I say we should keep them on board and ignore the bottom-line cost issues and focus on their economic impact these older wiser employees can create for the company.  Management must stop terminating the baby boomers because the economic argument that fosters this decision making is not financially sound and never was to begin with.  It’s like a bad drug addiction.  Remember, wisdom still is a virtue for a reason.

When will this change occur? When management realizes they can make greater revenue multiples by providing better job security.  They will have to stop listening to management side defense employment counsel who banter incessantly to maintain the employment at-will rule for every client. The world isn’t flat, or at least until someone very smart said it wasn’t.  Same goes here, management should adopt this new rule and maybe just maybe they will convince themselves that #employees matter.

Several Great Reasons to Get Rid of the Employment At-Will Rule. If you want more information about employment law issues, please feel free to contact Mark Carey, Carey & Associates, P.C., at info@capclaw.com or call the office at 203-984-5536.

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Age Discrimination in Employment: A Most Invisible Prejudice…

Employer Tactics Revealed How Employers Use Age to Terminate Employees

Employer Tactics Revealed How Employers Use Age to Terminate Employees

Very often, someone will come to our office having just been fired, feeling that the reason given by their employer just doesn’t make sense.  For example, a seasoned marketing executive loses his job shortly after his company brings in a team of young consultants. When the marketing department turns its focus exclusively upon social media, his role and responsibilities are gradually minimized.  Eventually, he is terminated and replaced by several of his own former trainees.

In another instance, a Senior Benefits Administrator with 30 plus years of stellar performance is suddenly criticized by her new manager as, “incompetent” and “not a forward thinker”. She is placed on a performance improvement plan (PIP) and her workload is increased so much that she can no longer keep up. Meanwhile, the company posts a job ad for an entry level Benefits Administrator.  After the new hire has shadowed her for a few weeks, her manager fires her for failing the PIP.

In yet another instance, a Strategy Analyst is abruptly demoted after over a decade in his supervisory position. He is assigned to “project work” as his role in the firm is slowly marginalized. The firm’s turns its employee recruitment efforts on finding “young”, “energetic”, “enthusiastic” new graduates.  His compensation is drastically reduced when the firm decides to allocate the lion’s share of the annual bonus pool to its new hires. When he complains, he is warned that he could easily be replaced by a kid right out of school for a fraction of his salary.

Age discrimination occurs when an employer treats an individual who is qualified for their job differently because of their age. The federal Age Discrimination in Employment Act (ADEA) protects job applicants and employees 40 years of age and older from discrimination on the basis of age.  Many states, including Connecticut, have similar laws protecting older individuals.

You may be a victim of age discrimination if:

Your performance reviews start going down as you get older;

Your employer makes frequent age-related comments;

You are disciplined for behavior that younger employees are not disciplined for;

You are passed over for promotions in favor of younger employees;

You are reassigned to unwanted or unpleasant tasks while younger employees get better assignments;

You are passed over for hire in favor of a younger job candidate or replaced by younger worker.

But proving that you were demoted or fired because of your age can be a difficult task.  First, direct evidence of discrimination, such as your boss telling you he is firing you because you are too old, is very rare.  Most employers will try protect themselves by carefully documenting a narrative explaining why your firing had nothing to do with age.

In each of the real-life examples above, the employer set up a pretext of poor performance to cover up its true discriminatory motives.  If you are suddenly and inexplicably given a poor performance review or placed on a PIP, your employer may be building a pretext to pave the way for your termination.  Knowing that your performance has remained consistent, you are blindsided by your supervisor’s sudden and inexplicable criticism.  Attempting in vain to save your job, you then try to to work even harder.   By the time you are terminated, you feel somehow responsible for failing at your job. It’s not your fault, it’s your age!

In addition to prohibiting employers from treating older workers differently than their younger counterparts, the law also prohibits policies and practices that have a “disparate impact” on older workers. This particularly insidious type of age discrimination occurs when an employer’s seemingly neutral policies have a disproportionately adverse impact upon older workers.  For example, a company announces that it will be laying off all employees above a certain salary level. This policy has a disproportionately adverse impact on older workers who generally earn larger paychecks.

But courts are reluctant to second guess a company’s layoff policy, where the employer can show that it is a “business necessity”, in this case, cost-saving.  In order to win a disparate impact claim, an employee would then need to bring forth evidence of an equally effective, but non-discriminatory way for the company to achieve the same goal. The cost-saving “business necessity” excuse makes disparate impact claims particularly hard to prove.  Older workers tend to earn higher wages than younger workers by virtue of their added years of experience.  Making the situation even murkier is that the impact of these “cost saving” layoffs tends to fall specifically on older workers in middle to upper middle management positions.  In a case like this, the company’s officers, also over the age of 40, decide to get rid of its long-term managers and replace them with younger workers at lower salaries.

Employer Tactics Revealed How Employers Use Age to Terminate Employees. If any of these scenarios sound familiar and/or you just received a severance package, you should consult our employment lawyers. Please call (203) 255-4150 or email info@capclaw.com.

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Age Discrimination in Employment: A Most Invisible Prejudice…

 

What’s Your Job Strategy In The Face of the New Recession?

What’s Your Job Strategy In The Face of the New Recession?

What’s Your Job Strategy In The Face of the New Recession?

The next recession is now here, depending on the of source of information or this source.  The Federal Reserve is reversing interest rate hikes to soften the economic expansion and the unemployment rate is at a 50 year low.  We are well past the cyclical ten year timeframe as recessions go.  What is your strategy to preserve your job in the face of this new recession? What is your strategy if and when you are laid off?

You are probably thinking, “what strategy?” You get up, go to work and hope you can continue to remain an at-will employees until the end of the new pay period, under the presumption you have no control over your job. Better yet, you planned on retiring from your company in the distant future.  On the other end of the spectrum, there are employees who think their longevity with their employers will insulate them from any headcount reductions during recessions.  Both viewpoints are wrong and employees can control their employment outcomes during a recession.

5 Strategies To Save Your Job During a Recession

The following strategies are followed by our clients when they see the “writing on the wall” by their managers. Although some clients never see the messaging from their employer, we do.  Depending on how soon you pick up all the clues determines which strategy to pursue.  Hint, the sooner you speak with an employment attorney the better.  If we are engaged earlier in the process, we can evaluate and develop an aggressive strategy that will force the employer to maintain your employment and/or pay a larger severance package with more favorable terms.

  1. Plan Ahead and Gather Intelligence From Managers and Coworkers

Are you proactive about your employment or do you follow the wait and see approach?  Becoming proactive with your employer means obtaining objective feedback from your managers and coworkers.  No, I am not referring to the annual performance review or 360 reviews.  A proactive employee will develop an initial assessment of his or her own performance by quietly engaging in one on one discussions with managers and coworkers about their working relationship and performance. You will need to keep detailed notes of these conversations in order to track the information over time and over various contexts.   Forget about the formalities of the annual review or the vague performance metrics employers follows.  I am talking about all the intel you can gather by having a straight up ever day conversation with your manager and coworkers.  Examine the body cues such as facial expressions, tone of voice and the context of conversations in relation to those cues.  Observe more instead of being reactionary or defensive.  The better you are at this task, the more intelligence you will pick up, as your manager or coworker will not know you are gathering information. Once you collected this information, you will need to strategize how to position yourself as a thought leader, influencer, leader and over-all get the job done kind of employee.  Lead by example and always remain the consummate professional during all interactions with your employer and coworkers.

Ironically, your employer is collecting similar information about you and your coworkers. In a recent article from SHRM, “A good way to begin is by collecting information about the organization’s workforce that can be used for long-range planning. ‘[HR] should be looking at the data, knowing who is where in their careers, who is where in their teams’… ‘Are people ready to move into the next position? Are they happy where they are?’ Review job descriptions and tasks and determine whether responsibility for those tasks can be more evenly distributed throughout the team. By understanding the big picture, HR leaders can advise business leaders on how to ready the workforce for future changes without resorting to morale-damaging layoffs.”

  1. File Internal Complaints of Discrimination to Maintain Your Job

Once we determine you are may be the victim of employment discrimination or have other employment claims, we will advise you about bringing these claims to your employers attention without escalating to an external governmental agency.  The main idea here is to engage in a protective activity to force your employer to “back the heck off” and cause them to reevaluate your potential termination.  Our longest standing record to keep an employee employed using this method is two years (my opposing counsel in that case was not happy, but I was not there to please him).

If necessary, you may need to file your discrimination claims with governmental agencies in order to preserve your legal rights.  The same antiretaliation laws apply and employers will back off for a limited period of time in order to avoid you asserting an easy to prove retaliation claim.

  1. Dealing With Performance Improvement Plans (PIPS)

Combatting those inaccurate, one-sided and self-serving performance improvement plans. We wrote about this issue in Are Performance Improvement Plans (PIPS) Illegal?  A PIP is a clear indicator you will be terminated and you will need to engage an employment attorney ASAP!

  1. Severance Negotiation Based Years of Service

This strategy is relatively straight forward.  If you are slated for termination in a layoff, your employer may have a severance plan governed by ERISA, a federal statute that governs these plans.  Essentially, an ERISA severance plan spells out the amount you will be paid a salary continuation based on the number of years you worked for the company.  There is one catch, you will need to sign a waiver and release of all your legal claims against the employer in order to receive the payout.  You will also need an employment attorney to review the settlement agreement to insert favorable terms or get rid of unfriendly terms like noncompetition agreements.  Make sure when speaking with an employment attorney that he or she is an ERISA attorney, as there is a difference.  Our ERISA attorneys know how the statute works and will even point out in certain cases that you can create an ERISA plan based on one employee, “you”, even though the employer never created an ERISA plan.  Engage us to learn more.

  1. Getting Rid of That Noncompete Agreement on the Way Out

Great, you will be getting terminated but your employer stuck you with a noncompete, either at the start of your job or as part of the severance agreement. What do you do?  The noncompete does not benefit you at all, only your employer.  Now you have to navigate away from jobs you would normally apply for given your years in the same industry.  Is this fair? No.  Someone has to pay the utilities, mortgage and household expenses, but do not count on your employer to do you a favor. I have long taken a stand against these selfish one sided agreements and forced employers to rescind them or obtain an order from the court to void them.  We can help you remove your noncompete agreement with your employer and make you a free agent in the job market.  We will challenge the validity of the agreement with the employer directly and if the employer does not back down, we will take them to court through what is called a declaratory judgment action. Essentially, we ask courts to void the agreement due to lack of intention by the employee to enter into the agreement, aka a lack of consideration.

What’s Your Job Strategy In The Face of the New Recession? If you need more help planning for your future employment issues, please contact an employment attorney in our office. Employment law is all we do. Email to info@capclaw.com or call 203-255-4150.

COVID-19 CANCELS ALL NONCOMPETE AGREEMENTS DUE TO IMPOSSIBILITY

Quant Employee Records Business Meetings and Court Refuses to Enjoin Him

Quant Employee Records Business Meetings and Court Refuses to Enjoin Him

Quant Employee Records Business Meetings and Court Refuses to Enjoin Him

On February 14, 2019, after three full days of trial testimony, a federal judge in Connecticut denied an employer’s (Graham Capital Management in Darien, CT) motion for injunction because the employer could not demonstrate any harm beyond their mere “insecurity” about what the employee, a quantitative financial researcher, would do with recordings made during company business meetings. See full Court Decision Denying Injunction here.

The employee Steve Bongiovanni, age 56, filed an age discrimination lawsuit in Connecticut state court on December 29, 2017; he remained employed after the lawsuit was filed. Bongiovanni alleges his supervisor Ed Tricker, age 33, made the following discriminatory remark, [w]hy should we pay you so much when we can hire some young kid right out of college for $150K?”  Under state and federal age discrimination laws, Mr. Tricker made an unlawful direct statement implicating not only Mr. Bongiovanni’s age but also the fact he was paid to much.  Not surprisingly, Mr. Tricker denied the statement during cross examination.  As far as direct evidence goes, it does not get any better than Mr. Tricker’s age based statement.  Mr. Bongiovanni was later fired on October 1, 2018 for recording company meetings in attempt to capture evidence to support his age discrimination and retaliation claims.

The Court denied the employer’s injunction motion based on the following findings. “It is worth noting that the content of the audio files is sketchy and significantly limited in scope when compared to the content of confidential information accumulated in Bongiovanni’s head over years of employment with GCM. Therefore, Bongiovanni’s possession of these recordings does not significantly affect his ability to misappropriate GCM’s proprietary information.” In Connecticut, it is legal to record nontelephonic conversations with your coworkers so long as “you” consent to the conversation.

The Court went on to hold, “Bongiovanni argues that his intent in making the recordings is clear from his testimony. He testified in a believable and convincing way that his purpose in making the recordings was to support his discrimination claims against GCM. Indeed, when GCM challenged Bongiovanni’s right to unemployment benefits, the Connecticut Employment Security Appeals Division Referee found that Bongiovanni “did not knowingly violate the employer’s policy.” Moreover, Bongiovanni submits that he has no intention of utilizing the recordings to compete against GCM and no intention of disclosing the recordings to any person or entity outside of GCM. Bongiovanni has offered to stipulate with GCM to a protective order that would effect the exact confidentiality GCM seeks here through injunctive relief. Accordingly, Bongiovanni contends that GCM has failed to demonstrate any threat of disclosure by Bongiovanni to a third party.”  Strangely, when Bongiovanni’s attorneys offered to enter into a protective order regarding the same company information, the employer objected!

“During the course of the three-day hearing, testimony from GCM supervisory employees focused on the primary threat of harm caused by Bongiovanni’s removal of recordings from GCM’s premises: insecurity.”…“Bongiovanni is not competing with GCM. Indeed, to date, he is not employed by anyone, much less a competitor.”

“As the court noted during the hearing, it is willing and able to order Bongiovanni to return his copies of the recordings to GCM to remedy any danger of insecurity. Moreover, as discussed above, Bongiovanni has offered to stipulate to the return of his copies of the recordings. Nevertheless, GCM is not seeking the return of Bongiovanni’s copies of the recordings. The problem for GCM is that the remedies it does seek – that Bongiovanni be enjoined from (a) using GCM’s confidential information or trade secrets in any manner or for any purpose, and from (b) disclosing GCM confidential information or trade secrets to any person or entity outside of GCM – will not prevent the harm of insecurity illustrated by GCM’s testimony.” “The instant case is one more step removed, as no evidence demonstrates that Bongiovanni is actively misappropriating from GCM”

“The court understands GCM’s wariness of Bongiovanni considering his secret recordings and discrimination lawsuit against the company. However, “a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion. GCM’s mistrust of Bongiovanni is not evidence of irreparable harm sufficient to warrant the injunctive relief sought by GCM. Accordingly, GCM’s motion for preliminary injunction will be denied.

During the course of the proceedings, Bongiovanni’s counsel Mark Carey, was asked by GCM’s counsel on three separate occasions to enter into a stipulated injunction; all such requests were rejected by Bongiovanni.  As argued during the preliminary hearing, GCM filed the complaint and motion for injunctive relief against Bongiovanni only to create a defense to his age discrimination lawsuit.

Quant Employee Records Business Meetings and Court Refuses to Enjoin Him. Please contact Mark Carey if you would like to discuss your employment law situation or email to info@capclaw.com.

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Three Reasons Why You Should Not Accept Severance Pay

Three Reasons Why You Should Not Accept Severance Pay

Three Reasons Why You Should Not Accept Severance Pay

We all have made decisions we regret later on at some point in our lives,  especially related to our work.  Here are three very good reasons why accepting a severance pay may not be in your best interest.

Reason 1: Confidentiality Clauses and Clawbacks

You were just presented with a severance package but you hold the brass ring of all time employment war stories there is. You plan on exposing your employer and you are extremely agitated.  Without a doubt, you think you have the greatest case in the world. Then you discover the severance agreement contains an iron-clad confidentiality clause that will prohibit you, your wife, your children and your parents, from ever telling your big story about a colossal corporate wrongdoing. If you accept the confidentiality clause and later breach the provision through disclosure, you risk the company taking back all of the severance pay and getting sued by the company.  At this point, the severance pay must outweigh the potential monetary value of public exposure and your credibility as a new whistleblower. But your career may take a dive. This is the classic catch-22 I see all too often.  You may not want to accept the severance agreement if the future monetary reward is great.

Reason 2: Non-competition and Non-solicitation Clauses

Remember that document you signed when you were on-boarded and were not really sure why you were checking the electronic box? Yes, that one. The non-competition and non-solicitation agreement you never intended to enter into. Now, upon separation, your employer hands you the severance agreement and you see an acknowledgment provision relating to the old non-competition and non-solicitation agreement.  In the alternative, the non-competition and non-solicitation agreement is presented in the severance agreement and you never had one while working for the company.  It gets worse, you were just offered a higher paying position with a competitive company which also does business with the employer (yes this does happen) or the new employer is both the competitor and the former customer/vendor).  In either example, you want to accept the severance pay because it is modestly reasonable, let’s say $75,000-$100,000.  But your new offer pays a salary of three times the severance amount and several years of employment.  Obviously, you may want to decline the severance if this the first time you have been presented with a non-compete and non-solicitation provision, as the future salary far outweighs the severance being offered. You may want to ask the new employer to offer a sign-on bonus in exchange for the leave behind pay (severance and bonus).  But what do you do if the non-competition and non-solicitation agreement was signed back on your first day of work? In this case, signing a severance agreement acknowledging the original non-compete only makes matters worse. You are stuck with the restrictive covenants. You may need to challenge the enforceability of the original agreement by declaring it void for lack of consideration (you did not intend to enter into it).  We do this all the time but there are risks associated with moving forward with employer number two, mainly having an injunction filed against you.  Again, the future salary will dictate your choice here and hopefully, your new employer will financially support your choice to compete.

Reason 3: Severance Amount Is Too Low

Let’s assume you have worked for the employer for ten years before being offered a severance package.  When you open the agreement, the severance amount is small. You discover the confidentiality clause and the restrictive covenant provisions mentioned above.  You conclude the severance is just too small in comparison to the loss of future economic value of not working in your industry.  You can decline the severance and sleep well at night knowing you can remain in your chosen field of work.  In the alternative, you can hire an employment attorney to scope out any and all possible legal claims to leverage on your employer to get a higher severance amount.  This is what we do every day.

Three Reasons Why You Should Not Accept Severance Pay. If you’ve been terminated by your employer and offered a severance agreement, let the employment lawyers at Carey & Associates, P.C. help you evaluate the pros and cons of signing the agreement. Contact us at 203-255-4150 or email to info@capclaw.com.

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Controlling the Psychology of Working to Your Advantage

Controlling the Psychology of Working to Your Advantage

Controlling the Psychology of Working to Your Advantage

No one discusses the psychology of work and the enormous role it plays in your everyday life.  I have researched and watched this issue for more than twenty years, from discrimination bias to contract negotiation.  I comb through client fact patterns looking for every psychological angle emanating from all the cast of characters in order to position the client to achieve success or to resolve a dispute. Why aren’t you doing this?

The Psychology of Your Manager

I know you think you know your manager, but I doubt you really know how your manager thinks and what motivates them. Psychology plays a direct and important role in such things as how your manager makes decisions regarding what jobs or tasks to assign employees and your career advancement.   Managers evaluate employee strengths and weaknesses, i.e. perceived psychology, and selectively assign tasks.  Employees are also chosen to advance based on their perceived psychology about whether they will be effective in handling the responsibilities of the new position. If you are blind to the role of psychological analysis, get your head out of the sand and in the game! Think of your job like a chess or strategy game, you need to consider every conceivable variable that will impact your chosen goals, both positively and negatively.  If you are not evaluating your opponent, i.e. your boss or coworker, you will not advance in your current position or your career.  I am not asking you to confront your boss with your new found psychological intelligence, keep it to yourself and use it to guide you when making critical decisions to your benefit. Successful employees and executives do this every day.

Here is what to look for when evaluating your boss’s psychology in order to gain an advantage:

(1) Evaluate facial and body cues that may show a degree of nervousness or over aggressive micromanaging (polar opposites), facial and body cues are one of the most important signals to read when assessing your opponent. (2) Examine the person’s prior work conduct toward yourself and other employees and the reaction those individuals had in relation to the decision being made. Was there a consistent logic flow or arbitrary selection decision making process without basis? (3) Go beyond the email language and check if the person really intended what was stated, email can be misleading. (4) Examine the individuals the person promotes and if they are a logical fit or the result of office favoritism and worse, discrimination. (5) Examine the potential for personal issues being brought to the office and determine if they are playing a role in the person’s work life. This list is by no means exhaustive of the possible variables impacting your opponent’s decision making.

The Psychology of Your Coworkers and Yourself

When you arrive at work, you walk into an office workspace filled with a multitude of personal psychologies.  There is no control other than the corporate mind speak dished out by the company or what you believe the proper protocol to acting professional is.  There is no discussion about how to manage yourself or others while at work. Sure, there are rules regarding behavior, but in reality, employees are thrown into the workplace and are just expected to know how to act and react moment by moment. Short of being fired for poor misconduct, how do you navigate the psychological warfare of the office? The solution is to become aware or mindful of your interactions with co-workers, including supervisors, especially when you are having a bad day.  Take a week and just observe the behaviors of others but don’t be reactive, just observe.  While you’re observing various office behavior, listen to your inner voice, you know the voice that is talking inside your head right now as you read this.  The more you become aware of this inner voice, the more self-control you will have during moments you need it most.  That inner voice is the reactive brain and not your conscious brain, it just keeps on talking at you over and over all day long.  Listen to your conscious brain, the one you make decisions with and the one you use to learn new information. Notice that the conscious brain does not ramble on at you, it is more concise and logical, not dramatic and overblown. Another method of handling the office psychology is to observe the expectations you set for yourself and others. Stop working from those expectations and focus on the current issue you are experiencing.  Your own expectations may be causing the problem you may be experiencing but you just don’t know it.  We pre-imagine how events in our work life should result, but we never really think about how we created those expectations in the first place. When the crap hits the fan and our expectations are dashed, we tend to blame ourselves or others in a knee-jerk reaction.  We never stop to think about our own thought processes, we just accepted what our mind (inner voice vs. conscious mind) said to us. As employment attorneys, we confront the end product of psychology in the workplace and are requested to find solutions.

Controlling the Psychology of Working to Your Advantage.  If you would like more information about this issue, please contact our employment lawyers at Carey & Associates PC at 203-255-4150 or email to info@capclaw.com.

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A Few Very Good Reasons Why You Can’t Trust Your Employer

A Few Very Good Reasons Why You Can’t Trust Your Employer

A Few Very Good Reasons Why You Can’t Trust Your Employer

We all build relationships based on trust.  Some relationships require more trust than others. For example, marriage, medical professionals and hiring lawyers.  We all take the time to explore whether these relationships are the right fit for us.  We even memorialize these important, sometimes life-changing, relationships with contractual agreements.  But when it comes to the relationship with your employer, you might as well start hand feeding piranhas.

Meet Your Antagonist: Your Employer

An antagonist is someone who actively opposes or is hostile to another; an adversary.  Does this describe your current or former employer? In my role as the employment attorney, I do not hear very many people say they trust their employers. In fact, the opposite is true.  According to a Harvard Business Review article, “In both your personal life and your work life, you’re bound to encounter people who take advantage of you, and these painful experiences can make you cynical.”
You have several reasons to be cynical about your employment relationship.  Your employer is not interested in whether you are happy at work, fulfilled in your career aspirations, concerned about your personal responsibilities at work or anything remotely realistic to a nurturing relationship.  In fact many employees have a low level of trust in their employers.  The 2016 Trust Barometer report from Edelman revealed that a third of employees do not trust their employers. Employees reported a lack of engagement, short term profit seeking, lack of belief in the company mission, poor product quality, unethical behavior, bad corporate reputation, invisible CEOs and lack of corporate communication to employees.

At-will Employment is Bad for You

When you are employed at-will, as most of you are, you might as well be on a first date for the next several years.  You would think that after knowing your employer for three or more years, you’d just settle down and get engaged to be married. However this is not so.  Unless you have a coveted and rare employment contract with a “for cause” termination provision, your employer can bounce you with little or no notice.  Many of you have felt this scorned feeling from prior jobs.  So where is the trust in the at-will workplace if you can never predict your future with a reasonable certainty on a day-to-day basis? There is none.  Ouch!

Somehow, we have just grown accustomed to this dysfunctional at-will relationship and let employers manipulate us with unenforced corporate codes of conduct, lofty corporate double speak and fear.

Management by Fear Does Not Create Trust

The most common corporate management practice today is to maintain a consistent level of passive-aggressive practices which propagate employee fear and insecurity. From my vantage point, I see a persistent pattern by employers accusing employees of subjective performance issues while their objective performance criteria are “meets” or “exceeds expectation”.  Employers use performance management techniques such as performance improvement plans and coaching to force out undesirable employees.  No one ever remains long after being managed this way. I also see cases of overt ruthless conduct, where a supervisor discriminates against pregnant employees as having “baby brain.” Saying things like, “I don’t want another woman working on the desk” or “If you’re being honest with yourself, do you really think you could do this job?”  And the comments get even worse. “I don’t want to hear any complaining from you, you and [spouse] did this to yourselves.” Only a supervisor with intentions to rid themselves of pregnant employees will make discriminatory statements like this to push the employee to quit out of fear of reprisal.

Discrimination Does Not Create Trust

The absence of trust becomes more noticeable when employees experience discrimination in the workplace or need to take time off due to health issues affecting themselves or a family member.  For these employees, their career with their particular employer has taken an abrupt turn for the worse.
For example, you become pregnant while employed and take a maternity/paternity leave under company policy and FMLA.  When you return, your job duties have changed and so has the person you reported to.  Pregnancy discrimination is one of the most perverse examples of a lack of trust an employee can encounter.  The employer has a maternity leave policy and you take a leave under said policy with no resistance.  However, upon returning to work you face pregnancy discrimination when your employment is terminated.  The employer will jump at an opportunity to replace you rather than reinstate you.  We would all agree, this is not an ideal trust building experience at any company, yet pregnancy discrimination continues to persist.

If you complain to your employer about issues of discrimination or whistle blowing, you will immediately cause your employer not to trust you.  You have a legal and moral right to complain about these issues, but do not expect reciprocation from your employer.  You just threw yourself off or under the company bus.  This equals your spouse cheating on you and then pointing the finger at you as the cause for why they had the affair.  Your employer’s Human Resources Department will not help you when you are down and have complaints about coworkers or your supervisor.  I am sure the folks in HR are nice people, but their “job” is to protect the employer, not you! Don’t make the mistake in confiding with human resource personnel, unless absolutely necessary to build a case for retaliation.

Arbitration and Noncompete Agreements Don’t Create Trust

Arbitration and non-competition agreements and employer trust are like oil and water with a sprinkling of gasoline for added flare.  The U.S. Supreme Court’s further endorsement of employer arbitration agreements cemented in stone the future of employee litigation and the permanent role of arbitration in your career. Listen, don’t be fooled, arbitration agreements are bad for you, your rights, your claims, the economy and are only good for employers.  Noncompetition agreements are even a better example of a lack of employer trust.  When your employer is finished with you and terminates your employment, they sink a big fishing hook in you and reel you back in at their whim each time you land a new position.  The employer cries foul, complaining you are single handedly destroying the company via working for the competitor.  These two forms of employment agreements represent the worst in every company that mandates them.  An arbitration agreement is a tool to conceal bad corporate acts from employment attorneys like myself and non-competition agreements are used to threaten competitive employers in the market place.

Rise Up and Demand More Trust

It is time to call an end to bad corporate practices- the deceit, the greed, the lies and the double speak.  Employees should demand more from their employers.  Rise up and unite together and tell your employer you would trust them only if they demonstrated trust to you first.  Trust begets trust.
Have questions or think you’ve been discriminated against at work?

A Few Very Good Reasons Why You Can’t Trust Your Employer. Let our employment law attorney’s help you get justice, contact Carey & Associates PC at 203-255-4150 or email to info@capclaw.com.

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