NC Employment Law Blog

Part 2: Does Age Poison Us, or do We Poison Age?

noreply@blogger.com (NC Employment Law Blog) — Mon, 16 May 2011 13:54:00 +0000

“Does age poison us, or do we poison age?” Astrid Alauda

This is Part Two of a Four-Part Series taken from my recent speech at Montreat College regarding Legal Issues as We Age, in which I primarily focused on Age Discrimination in the workplace. In Part One, today’s workplace was described as unique, given that it is the first time in American history that four generations are working side by side. It also touched on some of the differences among the generations, such as background, workplace culture, experience, skills and mindsets. It is these very differences that lead to stereotypes from which age discrimination emerges.

Age discrimination is often more subtle than other forms of discrimination, due to its being precipitated by false stereotypes equating age with ability rather than the group hatred prevalent in other forms of discrimination. It happens in the workplace when people make decisions about men and women based on ageist stereotypes regardless of the merit he or she is able to demonstrate. It exists in recruitment, selection, promotions, and training opportunities. There are negative assumptions about one’s ability to pick up technology and new processes, in general. An aging person may hear comments from co-workers, managers and family members, such as “[y]ou’re too old to do that,” “[p]eople in your generation don’t understand these things” and “[y]ou’ll be retiring soon anyway, won’t you?”

This age discrimination, which forms in the minds of younger workers, and to some extent, in all of us, is real. When Congress had before it the Age Discrimination in Employment Act, which protects most workers in our nation who are over 40 years old, one House representative, Representative Roman C. Pucinski, went undercover. His description of what took place follows:

[I wore] a sports shirt, a pair of slacks, and went out to a number of factories and tried to get a job. I didn’t identify myself, I just stood in line with a number of other people and I was shocked. In most instances they did not ask my name. They didn’t ask my experience. They saw my gray hair and asked “How old are you?” When I said I was 46, they wouldn’t even talk to me. They didn’t ask what experience I had; could I do the job; did I have the ability. They didn’t even bother asking. When I told them I was 46, they said “We are sorry. It is company policy we don’t hire anyone over 40. (1)

What representative Pucinski describes above is in a hiring situation. However, this type of discrimination also plays out in promotion, termination, compensation, training opportunities, and several other contexts of adverse employment action in which a person over 40 is treated differently than a counterpart of a younger age.

Where I commonly see this is where a company has a buyout, or is restructured, and the people at the top of the pay scale are let go. Then the question of age is raised, because those at the top of the pay scale have usually been at the company the longest, and are therefore older than the persons lower down on the pay scale. If the adverse employment decision was based on age, it is age discrimination. If the employer can show that the termination or adverse employment action was for a legitimate business reason, it is generally not age discrimination. We will get more into the technicalities of the law in this area in Part Three of this series.

Age discrimination is devastating to an aging worker who usually has less options than his or her younger counterparts when faced with an adverse employment action. Statistics show that that once unemployed, the older worker is likely to remain without work for a longer period of time than a younger counterpart. This is due to a variety of factors: the older worker probably owns his or her own home, may have school age children, and has strong ties with the community which are difficult for him or her to sever.

Other studies indicate that for many displaced older workers, the search for a job is a new and difficult experience and that they are unprepared for personnel interviews, employment tests, and competition of better educated younger workers. Additionally, the older worker initially attempts to seek out better paying jobs commensurate with his or her experience, thereby tending to diminish the job market available to him or her. He or she is often hesitant to retrain in order to meet our economy’s changing demands for skills and to augment his or her work qualifications. It is frequently economically or emotionally difficult for him or her to relocate to areas having better employment prospects.

Age discrimination in employment is one of the great barriers to workplace participation faced by people in our country today, and is one of the ways in which we, as a society, tend to poison age.

Part Three of this Four-Part Series will address the remedies the law gives those ages 40 and over in the workplace who experience age discrimination, via the Age Discrimination in Employment Act.

1. HR Rep No. 805, 90^th Cong. 1^st Sess (1967), reprinted in 1967 US Code Cong & Admin News 2213, 2219; See Hamilton v. Caterpillar, Inc.,966 F.2d 1226, 1228, 15 Employee Benefits Cas. (BNA) 1926, 59 Fair Empl. Prac. Cas. (BNA) 504, 59 Empl. Prac. Dec. (CCH) § 41632 (7^thCir. 1992).

Legal Issues as we Age | a Four-Part Series

noreply@blogger.com (NC Employment Law Blog) — Mon, 02 May 2011 14:49:00 +0000

(Taken from Susan L. Evans' speech presented at Law Day at Montreat College in Black Mountain, NC April 28, 2011)

Preface

Last week on April 28, 2011, I was invited to speak and join a panel discussion at Montreat College in Montreat, North Carolina, regarding legal issues affecting us as we age. My participation centered around the topic of age discrimination in the workplace. This topic is one of great interest to me, so I will present my speech as a four-part blog series during the course of the next four weeks. As an employment attorney, the topic of age discrimination in the workplace is, perhaps, punctuated by the fact that we now have 4 generations in the workplace for the first time in history.

I welcome your comments and personal observations throughout this four-part series. If you believe you may have an employment law case, please contact me for a free, confidential consultation.

Part I: The Workplace Today.

Before introducing the technicalities of the law on this topic, I want to give you a backdrop of what the workplace looks like today.

For the first time in American history, we currently have four generations working together in the workplace: Generation Y, Generation X, Baby Boomers and Veterans. In times past, there were two at the most.

So, how is it that we now find ourselves with four generations working side-by-side? Globally, more and more people will have a longer life expectancy. With rapid advances in medical technology, longevity is increasing. Not only are people living longer, but they are working longer, too. Sometimes, it's to keep their minds active. Sometimes, it's because an exit from the workplace would cause boredom. It also keeps those who are older in touch with other people and connected with society. Families are more scattered geographically than they were generations ago. Oftentimes, an elderly person is truly alone, except for workplace companions. However, in many instances, the elderly are working out of economic necessity. This reason is expected to grow. Extended employment life into the late sixties and seventies is increasingly necessary for individuals to accumulate sufficient retirement savings to finance a lengthy period of old age.

This new generational diversity presents benefits and challenges, which draw from the many differences among the generations. The differences in age lead us to other differences, such as differences in background, workplace culture, experience, skills and mindsets. All of this creates challenges for employers and employees alike. For example, the technological gap is one of the marked differences between the generations in the workplace today. It is true that some older people are not as comfortable or savvy with computers. Additionally, human resource professionals are reporting that younger generations don't place as much emphasis on how and when the work gets done, just that it gets done. That's a stark difference to the 9 to 5 mentality of the older generations. The younger generations tend to lean more into trends such as flex time and telecommuting for certain types of jobs.

The upside is that these differences enrich the workplace and the workforce where members of differing generations are willing to listen to, learn from and benefit from one another. It can result in a budding and rich garden of diversity where mentoring, skill sharpening, innovation, sharing and teamwork take place. The downside is that these differences, as well as age barriers among workers and stereotypes that are given the aging and elderly, lead to age discrimination in the workplace.

Please feel free to leave your comments below, as I wish to encourage a community discussion on the above issues. Next week I will proceed to the topic of Age Discrimination.

NC Employment Law : An Overview

noreply@blogger.com (NC Employment Law Blog) — Sun, 17 Apr 2011 14:45:00 +0000

Disclaimer: The material on this blog is for information only and does not constitute legal advice. Use of this site or submission of information to our office does not create or constitute in any manner, an attorney-client relationship between Susan L. Evans, Esq. and the receiver. Users of this site should not act upon any information received without seeking the advice of a professional counsel.

Employment and labor law can become a difficult maze for a company or individual to navigate. Ferikes & Bleynat, PLLC is one of the few employment firms in Western North Carolina that represents both employers and employees. This dual representation allows us to provide a unique insight into the strategy and position of our cases, and has contributed to the firm’s success.

Employers

In representing employers, the firm provides: corporate training; complaint investigation; representation before state and federal courts and agencies on employment claims; advice and counsel on wage and hour, overtime, FLSA classification, FMLA and related issues; drafting of and training on policies and procedures; best practices counsel; defense to audits by the Department of Labor, unemployment and workers’ compensation boards; representation at unemployment hearings; and more. The firm’s goal two-fold: (1) to take the burden of these matters off the shoulders of business owners and clients, and provide a comprehensive plan for resolving our clients’ legal matters, so that our clients can focus their energies on their businesses and practices; and (2) to educate our client employers on how to hire, direct, discipline and terminate employees in accordance with the requirements of the law, thus reducing the likelihood of employment claims.

Employees

In representing employees, we help clients in negotiating their claims with employers, as well as prosecuting those claims before state and federal courts, state administrative agencies and the Equal Employment Opportunity Commission. The firm represents employees with their claims relating to discrimination, harassment, wage and hour, unemployment, employee benefits, the Fair Labor Standards Act, the Family Medical Leave Act, wrongful termination, constructive discharge and other matters.

Executive Employees

We represent executive employee clients with their employment matters, including: contract, compensation and equity issues; shareholder issues, discrimination and wrongful termination matters; severance and buyouts; and all other employment matters.

Employment matters we frequently handle include:

Discrimination claims – based on age, race, gender, religion, national origin, or disability

Wrongful and unlawful discharge

Sexual harassment

Wage and hour issues

Non-compete covenants

Trade secrets

Employment contracts

Separation agreements

Family, health, and leave issues

Pregnancy

Civil Rights Act of 1964 (Title VII) and 42 USC 1981 (Section 1981)

Age Discrimination in Employment Act (ADEA)

Family Medical Leave Act (FMLA)

Equal Pay Act (EPA)

Fair Labor Standards Act (FLSA)

Americans with Disabilities Act (ADA)

Other Workplace Torts

Employment Law Aspects of Business Transactions

Please visit our website at www.asheville-attorneys.com for more information.