Labor and Employment Law Weekly Update

08 November 2010 Publication
Authors: Raymond J. Carey

Legal News: Employment Law Update

Red Alert to Avoid Age Discrimination Lawsuits!
By Scott Callen

Don’t cross the line when suggesting retirement or questioning employees about their retirement plans.

Employers often suggest ideas to or question an employee about his or her retirement plans to actually save the employee from being involuntary terminated. For example, a common scenario may be a long-term employee over the age of 40 who is facing involuntary termination because he or she is not performing up to the company’s expectations or is employed in a position that has been targeted for elimination as part of a reduction-in-force (RIF). Involuntarily terminating an employee over the age of 40 can lead to age discrimination (http://tinyurl.com/pmups) claims, so employers may attempt to convince an employee to voluntarily retire as a way to avoid an age discrimination lawsuit. The bottom line, however, is that employers may end up defending an age discrimination lawsuit as a result of repeatedly suggesting or questioning an employee about his or her retirement plans, as a recent federal court case instructs.

In Goodpaster v. Materials Handling Equip. Corp., a 59-year-old heavy-machinery salesman was terminated as part of an RIF. The federal court in Indiana held the employee could proceed with his Age Discrimination in Employment Act claims based on management's persistent questions about his retirement. The court held that while an employer's suggestion of retirement alone is not typically sufficient to prove age discrimination, “repeated and coercive inquiries” can be sufficient evidence of age bias. In this case, the employee alleged that management began questioning him about his retirement in August 2007 and continued to question him, despite his complaints about the retirement questions, until his termination in August 2008. The retirement questions were ongoing and the court held a jury could conclude that the employer consistently — and improperly — tried to coerce the employee into an early retirement due to age bias.

In short, the circumstances involving an employee’s termination and the frequency of the retirement suggestions or questioning about an employee’s retirement plans must be carefully reviewed to avoid “crossing the line” and thereby creating evidence of age discrimination. Accordingly, it is strongly recommended that any discussions about retirement with an employee be carefully reviewed by a human resources professional or legal counsel to avoid creating evidence of possible age bias.

Cutting the Risks for and Appropriately Responding to Workplace Violence: Part I
By Raymond Carey

Employers generally recognize they have a legal obligation to provide their employees with a safe environment in which to work. For many employers, this simply means minimizing employees’ exposure to serious risk of injury or death due to work-related processes, machinery, and other operational causes. However, the legal obligation to provide employees with a safe work environment also includes minimizing the potential that they will be the victims of workplace violence. This goal can be achieved by preparing and using effective policies, practices, and procedures.

The Risk of Workplace Violence Is Real

Twenty percent of all violent crime in the United States occurs in the workplace. An estimated 1.7 million employees are injured each year because of workplace assaults. A recent U.S. Department of Labor (http://www.dol.gov/) survey of employers with 1,000 or more workers disclosed that more than 50 percent reported at least one incident of workplace violence during the preceding 12-month period. One out of three employees feels he or she has been bullied on the job. In other words, no employer is immune from the prospect of workplace violence.

Causes of Workplace Violence

An employee may unexpectedly develop a propensity to engage in workplace violence because of a myriad of issues related to work, family, financial adversity, or other pressures. For example, the discipline or discharge of an employee and how he or she is — or perceives — being treated by coworkers and management may precipitate violent behavior.

Potential Precursors to Workplace Violence

Employers can minimize the prospect of workplace violence if coworkers and managers identify, acknowledge, and respond appropriately to behavior that may be a precursor to workplace violence, such as:

  • Direct or implied verbal threats expressed by an employee about coworkers, management, customers, or family members
  • Other threatening behavior or gestures exhibited by an employee
  • Possession of weapons on the premises
  • Expression of extreme fascination with weapons
  • Paranoid or other unusual behavior
  • Extreme adverse reaction to coaching, discipline, or constructive criticism
  • Manifestation of extreme depression, delusional behavior, and/or suicidal inclination
  • History of violent behavior
  • Disregard for the safety of co-workers
  • Romantic or other obsession with or stalking of another employee

How should an employer effectively create incentives for coworkers and managers to timely and appropriately address behaviors that may lead to violence in the workplace? As will be discussed in a later issue on this topic, an employer must have effective policies, practices, and procedures regarding acceptable workplace behavior, situations that pose potential for workplace violence, and how to deal with an instance of workplace violence.

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