“You Can’t Teach an Old Dog New Tricks,” and Other Ageist Comments

By Kathleen J. Jennings (kjj@wimlaw.com)

In the U.S., there are projections that the number of Millennials may soon exceed the number of Baby Boomers. Millennials, whom are defined as ages 20 to 35 in 2016, numbered 71 million, and Baby Boomers (ages 52 to 70) numbered 74 million. Millennials are expected to overtake Baby Boomers in population in 2019 as their numbers swell to 73 million and Boomers decline to 72 million. Generation X (ages 36 to 51 in 2016) is projected to pass the Baby Boomers in population by 2028.

In the meantime, many of the massive Baby Boomer generation keep working, and all of them are old enough to be covered by the Age Discrimination in Employment Act (ADEA) (as are some Generation Xers). That means that all of them are protected against discrimination on the basis of age. So this means that when your company is conducting anti-harassment and anti-discrimination training, make sure that everyone, especially managers and supervisors, understand that negative comments about an employee’s age are among the behaviors that are not tolerated.

A subsidiary of Time Warner Cable learned how expensive an ageist comment can be. In Westmoreland v. TWC Admin. LLC , 2018 BL 145052, W.D.N.C., No. 5:16-cv-00024, the plaintiff, Glenda Westmoreland was in her 60s when she was terminated by her employer TWC Administration LLC, ostensibly because she asked a subordinate to falsify a document. Westmoreland alleged that she was discriminated against, and the case was eventually tried to a jury (twice, due to a mistrial in the first trial). At trial, the jury heard testimony that the manager who fired Westmoreland told her to “go home and take care of those grandbabies.” The jury also saw or heard evidence that Westmoreland had a stellar performance record prior to the document falsification charge and that TWC could have imposed discipline short of termination for the infraction. In short, that ageist comment from the manager completely undermined the company’s non-discriminatory justification for Westmoreland’s termination.

Pro tip: During any termination meeting, stick to the facts supporting the termination and avoid any unnecessary comments that might refer to the employee’s age, sex, disability, race, or any other protected characteristic. Seems obvious, but as the case above illustrates, it may be easier said than done.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

Volunteer or Employee? Get It In Writing.

By Kathleen J. Jennings (kjj@wimlaw.com)

Volunteer or employee? A recent case out of the 6th Circuit answers this question for a group of adults who volunteered at a church’s for-profit restaurant business. (Acosta v. Cathedral Buffet, Inc., 6th Cir., No. 17-3427, opinion issued 4/16/18).

The Department of Labor (DOL) sued the Cathedral Buffet because it relied heavily on work performed by recruited church volunteers. The U.S. District Court for the Northern District of Ohio ruled in favor of the DOL in March 2017, finding that the church members were coerced into volunteering at the restaurant and awarded the Labor Department a total of $388,508.

The 6th Circuit Court of Appeals reversed that decision and held that the district court did not apply the proper analysis to the situation. According to the Circuit Court decision, the first step in the analysis must be to decide if adult workers expect compensation for their work. Only if a worker expects compensation may a court then “assess the economic realities of the working relationship,” the decision went on to say. Under the Fair Labor Standards Act, courts look at the “economic realities” of an employer-worker relationship to determine if minimum wage and/or overtime is payable.

In Cathedral Buffet’s case, the recruited volunteers didn’t accept wages, in-kind goods or services, or tips for their work. However, the evidence showed that they did not expect to, because they volunteered their work to further their religious beliefs, and several of them provided sworn affidavits to that effect.

The 6th Circuit distinguished this case from a case decided by the 10th Circuit in March 2018 in which a pecan ranch was ordered to pay $200,000 for using unpaid child labor through an arrangement with the Fundamentalist Church of Jesus Christ of Latter-Day Saints. In the 10th Circuit case, there was evidence that the children were coerced into working for the pecan ranch. (Acosta v. Paragon Contractors Corp., 10th Cir., No. 17-4025, 3/13/18).

Pro tip: Want to avoid trouble with the DOL? Prepare documentation for a volunteer to sign that acknowledges that the volunteer does not expect compensation for his/her work and why (i.e., religious conviction, service to the community or a particular cause, etc.).

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Bullying vs. Harassment in the Workplace—What’s Actionable?

By Kathleen J. Jennings (kjj@wimlaw.com)

Picture the workplace bully: that manager that publicly humiliates any employee who makes a mistake at work, belittles any employee that dares talk back to him, and then storms down the hall bellowing “I’m in the mood to fire someone today!” He’s bad for employee morale, but has he engaged in actionable harassment? If he focuses his bullying on a particular protected class of employees, such as women, people over 40, racial minorities, etc., then yes. But if he abuses everyone and anyone, regardless of gender, age, race, etc., then he is what we like to call an “equal opportunity harasser,” and his behavior is probably not actionable under federal anti-harassment laws. That doesn’t mean it should be tolerated, though. This kind of behavior is likely to contribute to high employee turnover and the loss of good employees. Moreover, such behavior is likely to upset employees so much that they may consult with an attorney and/or file a charge with the EEOC. While the charges and lawsuits that result from these actions may be legally defensible, they are still going to cost the company attorneys’ fees and time to defend. The company’s reputation may take a hit, too.

Similarly, if an employee abuses another employee simply out of personal spite or vindictiveness, it is not actionable harassment, at least in Texas. In Alamo Heights Indep. Sch. Dist. v. Clark (Tex. en banc, No. 16-0244, opinion issued April 6, 2018), the Texas Supreme Court ruled that the bullying and harassment of a female middle school coach by another female coach was not actionable harassment because it was not motivated by the plaintiff’s gender. Though the bully made comments about plaintiff’s body and sexuality and made the plaintiff’s life miserable, the court said the comments were a result of personal dislike and vindictiveness and therefore, were not unlawful harassment. The employer won this case—but it had to litigate all the way to the Texas Supreme Court to do so.

Although there can be a legal distinction between bullying and actionable harassment, it is a distinction without a difference at the time an employee makes a complaint to the company about the behavior of another employee. As we have advised in the past, a company should never ignore an employee complaint of “harassment.” A company should conduct some form of investigation in response to every complaint. If an employee has taken that step of using the company’s complaint procedure, the company needs to show that it takes matters of harassment—and bullying– of employees seriously. Otherwise, the company may be doomed to high employee turnover and expensive lawsuits.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 

 

The US Department of Labor/Wage and Hour Division Launches PAID Program

By Kathleen J. Jennings (kjj@wimlaw.com)

Today, the Wage and Hour Division (WHD) of the U.S. Department of Labor launched a new nationwide pilot program, the Payroll Audit Independent Determination (PAID) program. PAID facilitates resolution of potential overtime and minimum wage violations under the Fair Labor Standards Act (FLSA). The program’s primary objectives are to resolve such claims expeditiously and without litigation, to improve employers’ compliance with overtime and minimum wage obligations, and to ensure that more employees receive the back wages they are owed—faster.

Under the PAID program, employers are encouraged to conduct audits and, if they discover overtime or minimum wage violations, to self-report those violations. Employers may then work in good faith with WHD to correct their mistakes and to quickly provide 100% of the back wages due to their affected employees. According to the DOL, if an employer chooses to participate in the PAID program and to “proactively work with the Division to fix and resolve their potential compensation errors,” the DOL will not impose penalties or liquidated damages to finalize a settlement.

An employer may not initiate the process to resolve any issues for which DOL is already investigating the employer, or which the employer is already litigating in court, arbitration, or otherwise. An employer likewise may not initiate the process when an employee’s representative or counsel has already communicated an interest in litigating or settling the issue. Also, employers cannot use the program to repeatedly resolve the same violations, as this program is designed to identify and correct non-compliant practices.

WHD is implementing this self-audit pilot program nationwide for approximately six months. At the end of the pilot period, WHD will evaluate the effectiveness of the pilot program, potential modifications to the program, and whether to make the program permanent.

A reasonable question: why would employers participate in the program if they can perform their own internal audits and pay whatever additional wages they conclude are appropriate?

According the DOL, the main benefit of this program to employers is DOL supervision of the payment of unpaid wages, and the execution of valid employee releases that release their rights to privately sue the employer for the unpaid wages. Under the FLSA, private out-of-court settlements do not result in a waiver of employees’ rights to sue their employer.

Nevertheless, we advise that employers tread carefully if they choose to participate in this program. If your company does choose to participate, we recommend that you have qualified counsel assist in the process and calculations. It also remains to be seen how the DOL will treat repeat violations of issues resolved in the PAID program.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.