ADEA Waivers Must Be Written in Plain Language to Be Enforceable

Q.  I’m the HR Director of a large company that is planning a reduction in force in one of our divisions. We intend to offer early retirement incentives to some of the individuals, contingent on them signing an agreement to waive all future claims against the company under the applicable discrimination laws, including the Age Discrimination in Employment Act (ADEA).  What information needs to be included in the waiver to comply with ADEA requirements?

A.  Companies with plans to implement a reduction in force should proceed with caution following a recent decision in which the court found that a waiver and release of claims signed by an outgoing employee violated federal age discrimination laws. On January 11, 2019, in Ray v. AT&T Mobility Services, LLC, a federal judge in the Eastern District Pennsylvania held that AT&T violated the ADEA by giving employees a waiver that failed to meet the strict informational requirements of the Older Worker Benefit Protection Act (“OWBPA”).  The court found that the waiver lacked sufficient details regarding members of the overall decisional group, and therefore, affected employees did not have the information necessary to make an informed decision about whether to waive their right to assert claims against the company under the ADEA.

The OWBPA requires employers to include specific language and to follow certain safeguards when asking employees over age 40 to sign a waiver giving up their right to sue the company for age discrimination under the ADEA. This information must be provided to the employee “in writing in a manner calculated to be understood by the average individual eligible to participate.”

Among the other OWBPA requirements, exiting employees must be advised in writing that they have the right to consult an attorney before signing the waiver. If waivers are presented to a group of employees (i.e., in a RIF), each employee must be given at least 45 days to decide whether or not to sign it.  If the waiver is presented to a single employee, in the absence of a RIF, the employer must give the employee 21 days to decide whether to accept it.  In either case, after signing the waiver, employees have seven days to revoke the decision.

As demonstrated by Ray v. AT&T Mobility Services, LLC, however, the OWBPA’s most challenging requirements flow from the employer’s duty to provide information about its decision-making process, specifically in terms of the factors used to select the employees to be released.  In the context of a reduction in force, a waiver must clearly describe the group of employees under consideration and must delineate the eligibility factors relevant to the decision making process, including the job titles and ages of all individuals in the group selected and not selected for the reduction in force.

In Ray v. AT&T Mobility Services, LLC, the plaintiff, a former sales director, received a “surplus notification” letter from AT&T, informing her that she was losing her job due to a reduction in force in the company’s mobile phone sales and services division.  Employees targeted by the reduction in force were given the option either to remain in their current job while searching for other positions in the company, or to sign a waiver and release of claims ending their employment, after which they would be eligible for severance benefits.  The plaintiff decided to stay put, but after failing to land another job within the company during the 60-day period, she was terminated.  She then submitted the signed waiver and release, and the company paid her severance benefits.

Despite signing the waiver, the plaintiff filed a complaint, alleging that the waiver did not meet the “knowing and voluntary” requirements of the ADEA.

The waiver provided by AT&T informed employees that the pool from which the terminated employees were chosen was “the combined Affected Work Group(s)” in the ADEA listing, which for its part described the group as being “comprised of positions at the same level with similar definable characteristics from which the surplus employees are selected,” and further stated that the affected groups could be “any portion of an organization, described in terms of level, job title, similar job functions, geography, lines of organization or other definable attributes based on needs of the business.”

The court rejected this “vague and circuitous” language, explaining that the waiver did not provide terminated employees with “any meaningful information as to how the process of identifying those included in the reduction-in-force was conducted.” Moreover, the “combined Affected Work Group(s)” that constituted the decisional unit were created solely to effectuate the reduction, and thus “terminated employees such as [plaintiff] had no meaningful understanding of their composition or origin.”

In granting partial summary judgment to the plaintiff, the court pointed out that the company had disclosed ages and job titles only for those employees selected or not selected within certain groups it determined would be impacted by the reduction. Instead, the court explained, the company should have disclosed the job titles and ages of every employee in its sales and services division who was selected or not selected for inclusion in the decisional unit.  In other words, the company could not simply describe a subset of the larger decisional group without explaining the process by which the subgroup itself was cleaved from the division overall.  According to the court, AT&T’s “circuitous decisional unit definition is precisely the type of disclosure the OWBPA seeks to prevent.”

For companies implementing a reduction in force, the Ray v. AT&T decision serves as a reminder to pay close attention to the strict requirements of the ADEA and the OWBPA when providing waivers to outgoing employees, and to draft the language in a way that it is easy for employees to understand.  Aside from the ADEA/OWBPA rules, employers also should note that other laws may be triggered by a RIF, depending on the specific circumstances.  For example, the Worker Adjustment and Retraining Notification Act (“WARN”) requires employers to provide 60 days written notice for certain plant closings and mass layoffs. Moreover, federal and/or state anti-discrimination laws could be implicated if the RIF has a disparate impact on a protected group.

As the Ray v. AT&T court explained, the major underlying policy of the OWBPA disclosure requirements is to “arm employees with enough information to make an informed decision whether to release any potential ADEA claims against an employer.”  While it may seem counterintuitive to “arm” outgoing employees with information that might result in a lawsuit against your company, the case shows that a lack of transparency could result in liability despite the lack of discriminatory intent.  Given the myriad of rules and regulations potentially applicable to a RIF, employers should seek legal counsel prior to taking action to ensure compliance and avoid liability.

Rogers Stevens

SOCIAL MEDIA JOB POSTINGS AND AGE DISCRIMINATION

Q:        Does using social media advertisements targeted to younger potential applicants raise age discrimination concerns?

A:        The Age Discrimination in Employment Act (“ADEA”) makes it illegal to discriminate against workers over the age of 40 in employment advertising, recruiting, hiring, and other employment opportunities.  The publication provision of the ADEA generally makes it unlawful to “print or publish” job notices or advertisements “indicating any preference, limitation, specification or discrimination, based on age.”  Age preferences for younger employees are only appropriate when age is demonstrated as a bona fide occupational qualification that is reasonably necessary for the normal operation of the business.

Age discrimination claims pursuant to the ADEA have been rising steadily in the past 10 years. The number of age discrimination complaints submitted to the U.S. Equal Employment Opportunity Commission totaled about 18,000 in 2017 — about 20% of all complaints filed with the federal agency.

At the same time, the manner and method by which employers are posting job advertisements has been changing and evolving. Not surprisingly, given the rise of social media usage, many employers are turning to sites like Facebook to recruit new hires.  However, using such sites to target specific demographics, such as younger applicants, may run afoul of the ADEA.

In December 2017, a group of some of the largest U.S. employers found themselves in federal court, facing tough questions about their social media hiring practices. A class action lawsuit was filed against the various employers, alleging that they used Facebook-provided targeting tools and algorithms to direct ads to younger potential applicants, thereby discriminating against older applicants in violation of the ADEA.  The individual plaintiffs in the case, who are all recently unemployed workers over the age of 40 who use the social media site, claim they have been denied the opportunity to view certain employment advertisements simply because of their age. Because they could not view the ads, consequently, they could not apply for the posted jobs.

Although we do not yet know the outcome of the pending litigation, it is likely similar claims will follow. So what can an employer do to mitigate the risks associated with posting jobs on social media sites?  Treat the online posting no differently than any other publication, such as a newspaper.  Avoid using language that may be deemed discriminatory (i.e. “young” or “new grad”).  Research the social media site’s advertising policies and procedures.  When completing the criteria for the posting, do not affirmatively limit how the advertisement will be shared among different age demographics who use the site.  Ensure that your company’s advertisements are accessible and open to potential applicants of all ages.

Leigh McMonigle

Single Ageist Comment May Be Insufficient to Sustain Age Discrimination Claim

Q.  If a supervisor makes a comment about an employee’s age, will the company be liable for age discrimination?

A.  While ageist comments are never appropriate in the workplace, an Illinois federal court recently ruled that a single age-related comment was insufficient for an employee to prevail on an age discrimination claim.

In Maglieri v. Costco Wholesale Corp., No. 16-cv-7033 (N.D. Ill. Mar. 14, 2018), the plaintiff employee alleged, among other claims, discrimination and retaliation under the Age Discrimination in Employment Act (“ADEA”). The 54-year old plaintiff worked in a Costco bakery and was directly supervised by a 57-year old manager. According to the plaintiff, the manager repeatedly yelled at her in a “nasty” and “intimidating” voice about working faster. But according to a co-worker, the manager was mean and abrasive to all subordinates and would sometimes yell to motivate employees. The co-worker also testified, however, that she once recalled the manager stating she was “kind of surprised that [Costco] didn’t hire someone younger” when plaintiff was hired. All of the plaintiff’s performance reviews reflected the manager’s concerns with plaintiff’s work speed.  However, plaintiff was not terminated or demoted and did not otherwise experience a change in her job duties.

The ADEA protects employees age 40 and above from age-based discrimination in the workplace. Employers may not discriminate against employees in any manner on the basis of age, and employers may not retaliate against employees who oppose any practices made unlawful by the ADEA. The plaintiff in this case alleged that she was the victim of both discrimination and retaliation.

In order to prove an age discrimination claim, plaintiff needed to show that her employer subjected her to an adverse employment action (such as termination, change in job duties, or a hostile work environment) because of her age. As the Court noted, “not everything that makes an employee unhappy is an actionable adverse action.” Although the manager’s yelling and alleged abrasiveness could present a Human Resources problem, merely being mean or raising one’s voice does not constitute a violation of the law.

The Court observed that plaintiff did not suffer termination or a change in job duties and also concluded that plaintiff was not the victim of an age-based hostile environment. According to the Court, it is not enough that an employee subjectively believes an employer’s conduct to be discriminatory. To prevail on a hostile environment claim, a plaintiff must show that the complained of behavior was both subjectively and objectively offensive. The evidence in this case showed that there was only one comment about age (the manager’s comment that she was surprised Costco did not hire someone younger). The Court found that “this sole age-based comment, which was not directed at [plaintiff] and did not contain any prejudiced views or derogatory slurs, is not enough to establish that [the manager] harassed [plaintiff] . . . because of [her] age.”

The Court concluded that the manager’s criticism about “slowness” and “lack of urgency,” were not a veiled way of harassing plaintiff about her age. While the ADEA prohibits employers from relying on age as a proxy for an employee’s work-related characteristics—such as productivity—the ADEA does not bar employers from focusing on the work-related characteristics themselves. According to the Court:  “Not completing work quickly enough is a legitimate workplace criticism.”

Employers should be aware that a single comment that is discriminatory on its face, such as a racial slur, could be sufficient to establish a hostile work environment.  In fact, courts have concluded that such singular comments are sufficient to bring a claim under various state and federal employment discrimination laws.

Although the employer in the above-referenced case managed to avoid liability, all employers would be well-served to conduct non-discrimination and anti-harassment training in the workplace that focuses not only on age-based discrimination and harassment but also on other forms of harassment based on sex, race, disability, and other protected traits. Pepper Hamilton’s Labor and Employment Practice Group can conduct anti-harassment training sessions for both your managers/supervisors and rank and file employees. Contact a Pepper Hamilton Labor and Employment attorney to discuss how we can tailor a training program to the needs of your workforce.

Lee Tankle

Job Ads Distributed to Younger Recruits May Be Discriminatory

Q.  My company wants to target on-line recruitment ads for certain jobs to specific age groups. Is that legal?

A.  In most circumstances, the answer is no. Unless an employee’s age is a bona fide occupational qualification (i.e., hiring an applicant under a certain age is reasonably related to an essential operation of the business), a policy targeting recruits under an age limit likely will be considered age discrimination.

The Age Discrimination in Employment Act (ADEA) states that, generally, it is unlawful for employment notices or advertisements to include age preferences, limitations, or specifications.  Thus, advertisements that state that the company is seeking applicants who are “age 25 to 35” or “recent college graduates,” for example, violate the ADEA. Employers also may not base hiring decisions on stereotypes about a person because of his or her age.  Likewise, an employer may not use an employment test that excludes older applicants unless the test is based on reasonable factors other than age.

But, what if, instead of soliciting a certain age group in the text of the advertisement, the company uses technology, such as micro-targeting, to limit the population receiving the job ad? In a recent class action case filed in Northern California, a group of plaintiffs claimed that such a practice also violated ADEA. The plaintiffs sued several large companies and a defendant class of “hundreds of major American employers and employment agencies,” claiming that the companies used Facebook’s ad platform to routinely exclude older workers from receiving their recruiting ads on Facebook, “thus denying older workers job opportunities.”  The lawsuit seeks to certify a class of older applicants who were excluded from receiving employment ads, and seeks injunctive and monetary relief for what it calls a pattern and practice of age discrimination.

The class action is in the early stages, and it will be interesting to see whether the court agrees with plaintiffs’ argument that using technology to limit the pool of applicants to certain age groups is discriminatory.  In the meantime, employers should take heed and avoid targeting younger recruits, both on the face of the job ads and by limiting the population receiving them, absent a bona fide occupational reason to do so.

–Tracey E. Diamond