The Best is Yet to Be?

Grow old along with me!
 The best is yet to be,
 The last of life, for which the first was made.
– ROBERT BROWNING

An AARP national survey points to the existence of  a climate of fear among older workers of seemingly  pervasive and unchecked age discrimination in America.

The AARP survey finds that 64 percent of older American voters think workers over the age of 50 face age discrimination in the workplace and 34 percent report that they or someone they know has experienced age discrimination in the workplace.  Meanwhile, older workers face increased pressure to work longer than ever before as a result of dwindling savings and disappearing pensions.

In addition, the AARP reports roughly 8 in 10 older American voters say:

  •  It is important for Congress to take action and restore workplace protections against age discrimination (81%).
  •  Across party and ideological lines, they support the Protecting Older Workers Against Discrimination Act (POWADA) (78%).

Age discrimination has flourished since the U.S. Supreme Court ruled in 2009 that workers who assert they are discriminated against because of their age have a higher burden of proof than workers who  are discriminated because of their race, sex, national origin, religion, etc. (see Gross v. FBL Fin. Servs., Inc., 129 S.Ct. 2343, 2351 (2009))

The proposed POWADA would restore the previous legal rules and protections that existed before the 2009 decision.

POWADA was introduced in March by  Iowa Senators Tom Harkin (D-IA) and Chuck Grassley (R-IA) and Senator Patrick Leahy (D-VT).  Harkin is Chairman of the Health, Education, Labor and Pensions (HELP) Committee while Leahy and Grassley are the Chairman and ranking member respectively of the Senate Judiciary Committee.

The AARP notes the unemployment rate for older workers has soared in recent years, and once out of work, older jobseekers experience far longer spells of unemployment – well over a year, on average – than their younger counterparts.   The AARP says age discrimination is one of the significant reasons why it takes so much longer for older jobseekers to become reemployed.

The Supreme Court decision requires age discrimination victims to show that  “but for” age discrimination they would not have suffered an adverse employment action.  In other words, they must prove that age was the decisive factor in how they were treated.

 Prior to the ruling, age discrimination victims, like other discrimination victims, were required to show only that discrimination was a factor behind how they were treated.  The employer then was required to show that discrimination was not a factor.

The number of age discrimination complaints filed with the Equal Employment Opportunity Commission has more than doubled in the past decade, to a total of 23,465 in 2011.

Here are some other findings in the AARP survey:

  • Seventy-seven percent of respondents are concerned that their age would be an obstacle  to finding work if they had to find a new job in the current economic climate;  56% say they are “very concerned.”
  • Ninety-one percent agree that older Americans should be protected from age discrimination just as they are protected from other forms of discrimination, including a 73 percent supermajority of respondents who strongly agree.

The AARP (a.k.a. the massive insurance company) describes itself as a nonprofit, nonpartisan organization with a membership that helps people 50+ have independence, choice and control in ways that are beneficial and affordable to themand society as a whole.

“Cyber-Bullying” Charge is Excuse to Downsize

by PGB

The National Labor Relations Board recently issued the first decision by a Board Administrative Law Judge involving employee use of social media, finding parallels between postings on Facebook and gripes around the proverbial “water cooler.”

In Hispanics United of Buffalo, Inc., Administrative Law Judge Arthur J. Amchan noted the employer conceded that it would have  fired the five employees in question if their activity had taken place around the water cooler.

“Thus, the only substantive issue in this case …. is whether by their postings on Facebook, the five employees engaged in activity protected by the Act. I conclude that their Facebook communications with each other, in reaction to a co-worker’s criticisms of the manner in which HUB employees performed their jobs, are protected.”

On September 6, 2011, Judge Amchan ordered the fired employees reinstated with back pay.

Here’s the scenario:

Lydia Cruz-Moore, an employee of HUB, a non-profit organization that provides social services to the poor in Buffalo, NY, was repeatedly critical of the level of service provided by her co-workers, whom she accused of slacking off.  She threatened to complain to the program director.

One of her co-workers initiated a Facebook discussion asking for responses  to  Cruz-Moore’s criticism. Five employees joined in the discussion,  and in the process made sarcastic and derogatory comments about Cruz-Moore and the expectations of  HUB’s clientele.

Cruz-Moore sent a text message to HUB’s Executive Director Lourdes Iglesias saying the Facebook posts constituted “cyber-bullying.”  Iglesias summarily fired the five employees involved in the Facebook discussion on the grounds that their comments violated  HUB’s “zero-tolerance” harassment policy.  She also told the fired employees that their comments caused Cruz-Moore to suffer a heart attack.

Amchan completely discounts Iglesias’ stated reasons for the terminations, finding that HUB was seeking to downsize and “seized upon the Facebook posts as an excuse for doing so.”

He concluded  the Facebook discussion was concerted protected activity under the National Labor Relations Act because the discussion involved the terms and conditions of employment, specifically, job performance and staffing levels. He rejected as irrelevant the argument that the Facebook postings were not protected because persons other than HUB employees may have seem them.

Amchan also notes the Facebook posts were not made at work or during working hours and were not critical of HUB. He said HUB failed to establish for the record that Cruz-Moore had a heart attack or that there was any relationship between her health conditions and the Facebook posts. Also, he said, HUB failed to show that the employees violated any specific policies or rules.

Amchan said the fired employees “were taking a first step towards taking group action to defend themselves against the accusations they could reasonably believe Cruz-Moore was going to make to management.”

By discharging all of the employees on the same day, Amchan said, “Respondent prevented them by taking any further group action vis-à-vis Cruz-Moore’s criticisms. Moreover, the fact that Respondent lumped (them) together in terminating them, establishes that Respondent viewed the five as a group and that their activity was concerted”

The case, which is numbered 3-CA-2787, is the first  involving Facebook to have resulted in an ALJ decision following a hearing. Hispanics United has the right to appeal the decision to the Board in Washington.

This NLRB has broad jurisdiction to enforce the NLRA, which covers both union and non-union employers, and both for-profit and non-profit employers in some cases.