Stray Remarks in Age Discrimination Cases

Discrimination

            I have often said in seminars that I have taught that the scariest kinds of employment cases I defend are age discrimination claims. Give me a good old-fashioned sexual harassment claim any day compared to a long-term employee over 40 who was fired so the company could “go in a new direction”.

            Age discrimination cases are difficult to defend because jurors, like all of us, want to believe that employers will be loyal to them when they get older. We all hate the thought of our parents or ourselves being fired simply because the employer no longer finds us useful as we inevitably age.

            This makes age discrimination cases very expensive. The median age discrimination verdict in federal courts from 1994-2000 was $269,350, higher than for any other type of federally prohibited discrimination. That only takes into account the damages awarded to the plaintiff, not the other $75,000+ that the employer spent on lawyer fees to defend the case.

            Employers know these facts instinctively, so they often come up with all kinds of ways to soften the blow when an older worker has to be fired.

            Euphemisms seem to breed like mice in age discrimination contexts. I’ve heard employers call their older employees “dinosaurs”, suggest that their idea of technology never progressed beyond a Selectric typewriter, and suggest to an employee that it is time to retire and go fishing, perhaps thinking that the older worker would suddenly act as if a light went on in his head and happily go out the office door whistling the theme from the Andy Griffith show.

            In real life these types of euphemisms only enrage the employee even more than the firing and lead to a nasty lawsuit. Continue reading Stray Remarks in Age Discrimination Cases →

Recordkeeping Critical to Avoiding Legal Liability

Documentation

                If you get sued by one of your employees, the first thing your defense lawyer will want to see is the employee’s personnel file. Many employers don’t know what to keep in their personnel files or don’t retain the records long enough.

               The most important records if you get sued will be those concerning your employee’s performance. Formal evaluations are helpful, but regular notes of day-to-day problems with your employees are even better.

               You need to get into the habit of writing a note to the file every time your employees perform well or poorly. The notes do not have to be pretty; they can even be on scratch paper. Just be sure to date each note.

               Other than performance notes, many other records should be readily available on each employee. The simple checklist at the end of this article should help you decide what employment records to create, file and retain so that you can defend yourself adequately against any employee claims. Continue reading Recordkeeping Critical to Avoiding Legal Liability →

Even Family Firms Need Policies

Personnel Policies

            Most employers call me in my role as an employment attorney when something has gone wrong in the workplace—an employee is using drugs, not showing up for work, being unproductive or demonstrating a bad attitude.

            When asked about what has happened in the employment relationship before this problem arose, many employers will tell me that they have been running the company like a “family”.

            Because it was a family, the employer didn’t want to be very strict, didn’t adopt a written policy manual, failed to institute any formal rules or take the time to carefully clarify expectations. Generally, the employer has interpreted being a “family” as an excuse to be passive, tolerant and to avoid conflict.

            Sounds great. Doesn’t work. Continue reading Even Family Firms Need Policies →