December 19, 2014
Here at The Bullard Edge we see it all. Folks send us amazing questions – some that highlight holes in the law and others that illustrate HR blind spots. This week’s (fictional) mailbag letter probably falls into that latter category. It is a letter from HR Manager Don T. Seat of the Top Box Company. Don wants to replace an age protected worker (a 30-year Top Box veteran) with a recent college graduate (who has never held a full time job). In the process of explaining this, Don makes stray comments that would have a plaintiff’s lawyer test driving a new Tesla (because of Don’s loose language we have changed all of the names, including Don’s). Here is the question.
I need your help. My boss is giving me so much pushback on my plan to strengthen the company that it is making me wonder whether I missed something or whether he has a blind spot. My boss is company president Phil Aulde, who started the business in his garage in 1965 and is now just trying to hang on until the golden anniversary. Because of this retirement plan, Phil seems like a short timer and he may no longer have his eye on what is in the long-term interest of the company.
My plan is simple. And opportunistic. And genius. On the one hand, I have Ben Dunne, who is an underperforming Orders Manager. Ben is nice, tells great stories about growing up in the 50s, and is a company historian. He is not, however, good at his job, which over the last 4 years has morphed into a web-based sales role. We sell boxes…over the internet…and Ben is unfamiliar with social media or basic online sales terminology (like FABs). I have talked to Ben about this repeatedly, telling him what is expected of him, helping enroll him in training courses, and hiring extra help. He just does not understand computers. I never told him his job was on the line, although I made it clear that he was not cutting it. (I kept it light, though. People like Ben. I like to remind him that a mouse is not a rodent. We laugh.)
On the other hand, I have Mitch Younger, who is a kid without much work experience. Mitch emailed his resume to me and asked for a position in our online sales department. He said that he encountered glitch after glitch when he attempted to purchase boxes for his father’s business. Mitch’s resume was amazing…like an electronic showcase of his various skills, which include a stint doing online marketing while in college. I met with Mitch. He understands computers, the nuances of internet marketing and sales, and the kinds of features that assist online shoppers. The kicker is that Mitch assumed we had no one in charge of online sales because our website was so clunky.
Bottom line to me is that Mitch represents an opportunity that is too good to ignore. I don’t want to fire Ben. He is way too old to find another job and has antiquated skills. I plan to offer him a job responding to customer complaints; there would be some cut in pay, but not in benefits.
Phil says this plan is going to get the company in trouble. I assured him that age has nothing to do with this. Yes, Ben is old and Mitch is younger (unintentional pun), but this is all about ability to perform the duties of the position. Please tell me that Phil is just being overly cautious.
The Bullard Edge's Response:
At first we wondered if this was a serious question, Don. However, after a second look we think this is a much tighter situation. Here are some things for your consideration.
First, you seem familiar with the applicable laws that prohibit age discrimination in employment. The federal Age Discrimination in Employment Act (ADEA) protects applicants and employees who are 40 years of age or older from being treated less favorably less favorably than a younger worker because of age. The regulations provide more detail. Oregon law provides similar protections for workers who are 18 years of age and older.
Second, we have to look at the facts, or at least the facts you reported, Don. Here is what we see. Ben is age protected under both federal and Oregon law. He is a 30-year employee who has been involved in sales; it is just recently, as the company moved into the online sales arena, that Ben has been underperforming. You note that you have counseled him over the past few years about his performance shortcomings and company expectations. You did not say whether any time for improvement was discussed (e.g., telling him to improve within 6 months or Top Box may need to remove him from the Orders Manager position). You also did not mention anything about the company's termination standard (either in the form of a policy or based on past practice).
Further, in Mitch we see just the opposite. Mitch has no work experience. He apparently has computer skills and displayed sales savvy in his meeting with you. Based on that, you propose to have him replace Ben in the Orders Manager position.
Third, we have to look at the inferences that can be drawn from the facts. One inference could be that the company is replacing a less competent employee with a more competent applicant (the inference you are urging). Another inference could be that the company is replacing an age-protected worker (who was not on meaningful notice of this possibility) with a younger worker who has no work experience and is likely going to command less in compensation. The company could face liability if Ben brings a claim and it is the latter inference that is drawn by an enforcement agency (EEOC or BOLI) or a jury.
Even assuming that Mitch is eminently more qualified than Ben, The Bullard Edge believes that the plan to replace Ben with Mitch is risky. We believe you need to look closer at Ben’s situation. The key questions should include: (a) has Ben met expectations for the position; (b) have you communicated with him regarding performance expectations and the consequences of not meeting expectations; and (c) have you clearly and contemporaneously documented everything?
Finally, we want to draw your attention to the fact that EEOC recently brought an age-discrimination suit against the Blinded Veterans Association. While the merits are far from established, we know that EEOC alleges the BVA unlawfully terminated two employees based on age (a 76-year old employed for 34 years and a 70-year old employed for 15 years). EEOC asserts that the BVA made decisions based on age and tried to force these employees to retire.
I hope this helps. Good luck and best regards,
The Bullard Edge
Michael G. McClory joined Bullard Law in 1997. He likes talking about employment law, debating it, proposing revisions to it and even complaining about it. Perhaps so they could get some work done, his colleagues at Bullard Law suggested that he start a blog about employment law issues (broaden the conversation). And that is how this blog came to be.
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