In this recent case, notes scrawled on a napkin ended up getting a company dragged into court:

The company’s VP of Technology worked for the employer for 17 years with no problems — until a new president was brought in.

The VP disagreed with the president on several things, and received an uncharacteristically negative review from the president.

Faced with financial problems, the company brought in a management consultant to meet with the president and other decision-makers. One decision that came from that meeting: The VP of Technology was fired.

He was told it was because he wasn’t the type of leader the company wanted. But he thought it was because of his age (he was 58 at the time, and the company replaced him with a 45-year-old) and sued. He won. Why?

Evidence presented included notes the president wrote on a napkin while meeting with the consultant. The scribblings included a note that the company’s execs should be “young, energetic” “future people.”

After seeing that, the judge agreed age likely influenced the president’s decision.

Cite: Inman v. Klockner Pentaplast Of America, Inc.

Whenever you send an e-mail, it’s a good idea to double check it’s going to the right address. Especially when the message could have legal ramifications.

One executive recently got his company in big trouble by accidentally sending a message meant for HR straight to a job applicant. Here’s what happened:

A 46-year-old applying for a job as an operations manager at a financial services company sent his resume to the employer’s CEO. He didn’t get any response until he got a message that was meant for the HR manager but sent to applicant by mistake.

“Check it out — I don’t know what to think. He must be old — and looking for something to do,” the CEO wrote, apparently referencing the applicant’s many years of experience in unrelated fields.

After he didn’t hear back, the applicant assumed he was rejected. He sued the company, believing his age was the reason.

Defenses couldn’t hold up

In court, the company claimed the applicant wasn’t hired simply because his resume never reached HR. Also, the CEO said he made his remarks because, given the applicant’s past experience, he thought his interest in the position was “odd.”

But that wasn’t enough for the court. The e-mail was the applicant’s trump card — the company’s defenses couldn’t hold up against the CEO’s negative characterization of older applicants.

The obvious lessons for managers: Don’t discriminate, and don’t write discriminating e-mails.

But even beyond those simple tenets, managers should approaching electronic communication with care.

Given the way e-mails will be interpreted in different ways by different people, managers need to be careful even when they’re writing something innocuous. Bosses should be careful to keep information confidential — and aware that some topics are better addressed with HR in person.

Cite: Wold v. El Centro Finance, Inc.

First, the numbers. At the end of the last fiscal year, the EEOC reported 95,402 claims — a jump of 15% over the previous year and the most in the agency’s 44-year history. The agency said it recovered $376 million in settlements and judgments against employers as it filed 290 new lawsuits and resolved 339 suits and 81,081 non-court claims.

The EEOC doesn’t analyze the “why” but speculation rests on three main factors:

Economic conditions. When money’s tight at home or people lose their jobs or see a threat of job loss, they’re more likely to file complaints. That means companies that go through layoffs have to make sure every step of the process is buttoned up and can withstand a lawyer’s scrutiny.

Demographic changes in the workplace. This one’s tied to layoffs, too. A lot of companies have already laid off many of their younger, low-seniority workers, and now the ax is starting to hitting older workers with more seniority. They have grounds to sue — age discrimination — and often do so when they get a pink slip.

A change in complaint procedures. Last year, the U.S. Supreme Court ruled workers don’t have to file a formal complaint with the EEOC before suing an employer for age discrimination. In the particular case, the court’s 7-2 ruling upheld the right of FedEx employees to file legal claims against the company, assisted by EEOC,  even though the employees had never filed a formal charge with the agency.

Almost 1,200 HR managers responded to our poll about how they view the employment policies of President Barack Obama, and how those policies will affect HR. Here’s what they said, and here are 10 relevant pieces of legislation that probably will come into play in 2009.

The poll, and how they responded:

Do you think President-elect Obama’s policies on employment law will:

• Make your job more difficult — 69%
• Have no effect on you — 22%
• Make your job easier — 9%

Some comments:

“Please share the results of this poll with Obama and his staff. They need to try and fully understand the implications of their impending actions on this country.”

“I do believe that Obama’s policies will have a profound and accelerated degredation of an already overburdened and undersupported function…Human Resources.”

“Everyone enjoy[s] working here, the company provides excellent benefit, fully paid POS health insurance with tier-one carrier, Safe Harbor 401K, annual cash bonus with average of 6.6% annual salary increase, stock options. We did not need Federal government to tell us how to treat employee[s].”

What’s coming in ‘09
Here’s a rundown of the employment legislation that’s likely to cross the new president’s desk:

• Paycheck Fairness Act: Among other changes to the Equal Pay Act,  the legislation proposes that, for the purpose of demonstrating pay discrimination, a plaintiff can use compensation comparisons of employees who do not even work at the same physical place of business.
• Working Families Flexibility Act: Expands an employer’s obligations when an employee requests a change in hours or venue to accommodate family needs.
• Employee Free Choice Act: A proposal to make it easier for employees to form a union.
• RESPECT Act: Redefines the term “supervisor” in certain industries, thereby making some supervisors eligible for union membership – and empowered to act in the best interests of the unions and not the employer.
• Patriot Employers Act: Awards tax credits and other benefits to employers who, for instance, keep their operations from moving overseas and offer health insurance to their employees.
• Lilly Ledbetter Fair Pay Act: Changes the statute of limitations on how far back and employee can go to file a pay-discrimination suit against an employer.
• Employment Non-Discrimination Act: Would provide protections to gay, lesbian and bisexual workers against employment discrimination similar to the protection provided under Title VII of the Civil Rights Act of 1964.
• FMLA Expansion Act: Would expand coverage under the Family and Medical Leave Act to companies with at least 25 employees, as opposed to the 50-employee minimum in the current law.
• Healthy Families Act: Proposes that any company with at least 15 employees would required to provide paid sick leave.
• Civil Rights Act of 2008: A far-reaching piece of legislation that would amend a number of employment laws affecting, for instance, discrimination charges involving age and pre-employment tests, and changing the rules under which disputes can go to arbitration.

#1
Case: AT&T Corp. v. Hulteen

Issue: Pregnancy discrimination

Summary: The Pregnancy Discrimination Act of 1978 mandates that employees receive time-in-service credit — for purposes of retirement and other benefits — for all pregnancy-connected absences. The employer maintains that any pregnancy-related absences prior to ‘78, when the law was passed, cannot be added to time-in-service credit. The employee says pre-’78 pregancy absences must be credited.

#2
Case: Crawford v. Metropolitan Government of Nashville

Issue: Retaliation

Summary: ”Employee A” was called upon to provide information in an internal investigation involving a charge of sexual harassment against “Employee B,” a member of upper management. Eventually, Employee A was fired supposedly for poor job performance. Employee A sued the employer, charging the firing was in retaliation for cooperating with the investigation of Employee B. The employer argued that Title VII protections against retaliation apply only to formal investigations by the Equal Employment Opportunity Commission and not to an employer’s internal investigation.

#3
Case: 14 Penn Plaza LLC v. Pyett

Issue: Arbitration clauses

Summary: As part of a collective-bargaining agreement’s arbitration clause, an employee was obligated to waive his right to sue under the Age Discrimination in Employment Act. The employee argues that such clauses cannot be enforced because federal law guarantees the right to sue for age discrimination, and that no arbitration agreement can void that right.

Discrimination charges against employers last year jumped to the highest number since 2002. With all the emphasis on following the law and training supervisors, why do things seem to be getting worse?

First the numbers:

• EEOC fielded 82,792 discrimination complaints against employers in 2007. Compared to 2006, that represents the biggest one-year jump (9%) since the 1990s.
• Race and sex discrimination led in the number of the charges, but instances of pregnancy discrimination hit a record high for that category – 5,587.
• Companies paid out $345 million in damages as a result of the charges, up from $274 million the year before.

So, let’s repeat the question: With all the emphasis on educating supervisors and complying with the law, why do things seem to be getting worse? And can HR do any more than it’s doing now to help? Maybe, but there are factors to consider when adjusting your approach to stemming bias charges:

More men are suing. The percentage of men filing charges has nearly doubled since the 1990s. That might indicate that HR departments – sensitive to the dangers of sexual harassment – emphasize stopping discrimination against women but pay too little attention to offenses against men, including sexual harassment.

Pay and benefits have been flattening out. People who get less tend to sue more. An angry employee is much more likely to call a lawyer. If your organization has been cutting back on pay and bennies, you may need to step up efforts to prevent bias suits.

Employees are more savvy about the law. For a long time, laws like FMLA were overlooked and misunderstood. No longer. Anti-discrimination laws have matured, and so has employees’ knowledge. In your training you’ll need to be sure your managers are at least as savvy.

EEOC got tougher. In 2007, the agency enacted a plan in which local investigators get “performance-based” incentives. Translation: They got bonuses for uncovering discrimination and harassment cases, especially those that could be turned into big-money class-action suits against employers.

In short, the problem isn’t HR’s fault, but there are steps HR can take to address the problem.

You can start my making sure managers are trained and understand the importance of the training. (It might not hurt to show them the statistics above.)

And now more than ever is the time that you ans managers need to keep taking the pulse of the workforce. Are people angry? If so, managers can at least show they understand and maybe do a little something, such as offering small “atta-boy” incentives to lessen the anger.

Anything that keeps you out of court is a good idea and worth the effort.

In summary, the new rule — set up by the Equal Employment Opportunity Commission – allows employers to reduce health benefits to retirees who reach age 65 and become eligible for Medicare benefits. The change came about as a result of a Supreme Court ruling that said reducing benefits for Medicare recipients did not amount to age discrimination.

Who requested the rule change?
Employer groups did, of course. But so did the U.S. Chamber of Commerce and some labor groups, such as the AFL/CIO and the American Federation of Teachers.

I can understand why employers would want the change, but why would labor groups and unions endorse reducing the benefits of member retirees?
Some labor groups and employers were on the same page on this one because they realized that maintaining high-cost benefits for Medicare recipients would end up in reduced benefits for people under 65 who are still working.

Is it realistic to assume that’s what would happen without the change – that workers under 65 would get their health benefits cut?
Not only is it realistic, but it also happened. In a landmark court case — Erie County Retirees Association v. County of Erie – when the judge ruled that the employer had to maintain the same health benefits for retirees as for workers, the employer responded by reducing the benefits for workers and retirees. Thus, the employer followed the court’s edict by equalizing benefits for both groups at a reduced level.

So, in the end, do retirees take a hit on health coverage?
Every case is different, but employers and supporting labor groups generally say no. They insist the reduced level of coverage will be filled in by Medicare benefits. And that was their argument in the first place – that employers shouldn’t have to provide coverage needs that are already met by Medicare.

Does the change have any effect on a requirement that employers provide healthcare coverage for retirees?
No, because there is no requirement that employers provide retiree coverage. That’s at the option of the employer or part of a collective-bargaining agreement.

Note: Our own survey of 266 companies showed that 53% offer some type of health coverage to their retirees.

To get the answers, consider a study published by Boston College’s Center for Retirement Research. Researchers applied to entry-level jobs in Boston and St. Petersburg, Fla., by sending out 4,000 résumés posing as a female job applicant with the same skills and education; the résumés varied the year of high school graduation, which dated the job seeker as being from 35 to 62.  Here’s what happened:

– The women whose age on the application appeared to be closer to 35 were 40 percent more likely to receive an offer of a job interview than women over 50.

– On average, the woman applicants whose age appeared to be over 50 had to send out 27 résumés just to get one job interview; younger woman had to send in only 19 résumés to land an interview.

Interesting, too, is that many hiring managers said they thought older women in general were dependable, capable workers.

How to avoid trouble
It’s likely that a lot of preferential treatment is unintentional – few managers start out their day saying, “I’m going to discriminate against hiring older women.”
But you can lessen, if not eliminate, the possibility of inadvertent discrimination by:

– Eradicating any application information that might lead to assumptions about age, and
– Getting people of all ages involved in the hiring process, to get a multigenerational take on an applicant’s fitness for the job.

To see the full study:
http://crr.bc.edu/working_papers/age_women_and_hiring_an_experimental_study.html

If one of your supervisors asks any one of these, make sure your company’s lawyer is on speed-dial:

1. Are you married or divorced? Inquiries about marital status are clearly prohibited by federal law, unless you’re in a singles bar.

2. How old are you? Don’t be surprised if the person being interviewed answers, “You’ve got to be kidding,” and walks out.

3. Do you have, or plan to have, children? You might get away with this one if the answer to the previous question were “85.” Other than that, stay away from it.

4. What church do you attend? Pray for forgiveness if this question slips out.

5. Do you have any debts? With the person’s permission, credit checks are OK; direct questions about debt are not.

6. Do you belong to any social or political groups? Questions about “membership” can start out innocently enough, but often end up going in a bad direction if you get an unexpected answer.

7. Do you suffer from an illness or disability? Easy general rule to remember relating to this one: Ask about abilities, not disabilities.

The legal question at stake: Does cutting health benefits for Medicare-eligible former employees amount to age discrimination? AARP, the seniors’ lobby, argued in court that the proposed cut, previously OK’d by federal regulators, would be bias. Employers argued that it wouldn’t, and said a ban on reducing retiree benefits would make overall health coverage too expensive to fund.

The Supreme Court sided with employers and gave the go-ahead to reduce benefits for 65-year-olds.

Here’s what the ruling means to you:

If you offer retiree health benefits: Your company won’t be saddled with full funding for lifetime expensive coverage. You legally can put in a stipulation that funding can be reduced when retirees reach eligibility for Medicare. For many companies, that funding represents a big number.

If you’re thinking about offering retiree coverage: You might want to go ahead and offer it, if it makes some financial sense. Retiree coverage is an attractive benefit for a lot of job-hunters, particularly older ones. And now you know you’ll be locked in to full coverage only until the retiree reaches 65.

A 2004 survey by AARP showed 49% of retirees age 55 to 64 had health coverage from a former employer. However, the figure includes government retirees. So if you’re a private employer offering retiree coverage, that’s something to shout about when recruiting.