Think You're Confused? So is the Court!

On February 12, 2006 the 2nd U.S. Circuit Court of Appeals (covering NY, VT & CT) reversed the lower court's ruling in favor of the employer on a claim of age discrimination that had held that comments that are "stray remarks" are not "sufficient evidence to support age discrimination claims." The Circuit Court stated, "We believe the court misunderstood what we have said in prior cases about so called 'stray remarks.' We recognize that our precedents may have been somewhat confusing...We did not mean to suggest that remarks should first be categorized as stray or not stray and then disregarded if they fall into the stray category."

What was the case about? When a 63-year old employee with a history of good performance reviews, promotions and bonuses was terminated and the company subsequently hired a 25 year-old to perform similar duties, the former employee filed a lawsuit alleging age discrimination. She asserted as evidence of a causal connection between her age and her termination remarks that her supervisor allegedly made about once a month or every couple of months such as, "In your day and age...;" asking if she "ever thought about retiring;" if she "could keep up with some of the work;" and if she would like to consider work that was less demanding. The Court held that the evidence was "sufficient to sustain a reasonable finding that her dismissal was motivated at least in part by age discrimination." The Court also noted that the measure of discrimination does not depend on the offensiveness of the remarks. "Inoffensive remarks may strongly suggest that discrimination motivated a particular employment action."

Lessons Learned? Remember that the standards for establishing unlawful harassment and unlawful discrimination are different. The case above reminds us that while this employee may not have been unlawfully harassed based on her age because she was not subjectively offended by the supervisor's remarks, in this case they were enough to establish possible unlawful discrimination. Be sure you are providing training for your front-line managers on employment law basics. They need to understand that even innocent or well-intended questions or comments have the potential to create legal liability.

Hot Hits! Education Corner

March's Public Seminars/Speaking Engagements:

None this month; jam-packed with Client training - see below.

March's Client Training Programs:

" HR & the Law for Managers" (3)

"Managing Change in a Changing Environment"

"Workplace Ethics & Respect" (4)

"Maintaining an Inclusive Workplace"

Extended "Spring Forward" & "Fall Back"

If it seems Daylight Savings time is arriving particularly early this year there is a good reason; it is! The Daylight Savings Time provisions of the Energy Policy Savings Act of 2005 take effect this year. These provisions amend the Uniform Time Act of 1996 and extend Daylight Savings Time (DST) by approximately four weeks beginning in 2007. So this year, you will need to set your clocks ahead one hour on March 11th (second Sunday in March) and then mark your calendar to set them back one hour on November 4th (the first Sunday in November). Check with your IS administrator as your may need to run updates or patches for some computer operating systems.

Government Agencies Collect Record $

The U.S. Equal Employment Opportunity Commission (EEOC) is authorized to enforce a variety of employment discrimination laws and conduct enforcement litigation under Title VII of the Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act and the Equal Pay Act. On February 1, 2007 the EEOC issued a press release announcing that last fiscal year it received 75,768 discrimination charges, the first increase in total charge filings since 2002. What topped the list ? The top five types of discrimination charges filed against private sector employers were race, sex, retaliation, disability and age - in that order. Charges of pregnancy discrimination, which fell in FY 2005, hit their own record high in 2006. After increasing in FY 2005, the number of total harassment charges, covering all forms of unlawful harassment, decreased. For the seventh year in a row, the number of sexual harassment charges filed decreased. Age discrimination claims decreased for the fourth year in a row, a trend one might not expect with the advent of baby-boomers in the workplace combined with persons retiring later to ensure financial security. As for federal contractors, the OFFCP issued similar news. It announced that for FY 2006, it recovered a record high of more than $51 million from covered contractors in response to charges of unlawful discrimination. This is a 15% increase over the previous year. Audits covered: Compensation Standards (Glass Ceiling, Systemic Discrimination) Recordkeeping (Internet Applicant Rule) Affirmative Action Plans...and more. Lessons Learned? Don't be a statistic. Be proactive. Know your company's demographics. Ensure that your management, HR and pay practices are fully compliant with federal, state and local laws and regulations. With Congress, state legislatures, government agencies and the courts constantly issuing new laws, regulations and interpretations, what was compliant yesterday, may not be today. It's not a bad idea to conduct an HR audit everything 18-24 months (about the same schedule for your Employee Handbook), particularly if you have significantly increased or decreased the size of your workforce and/or started business operations in a new state. TIPS? FiveL Company was recently asked by a company that crossed the 100-employee threshold, with what employment laws they needed to comply. Answer? Most thresholds had already been passed. Most key federal and state employment laws cover employers with 1, 11, 15, 20 and 50 employees. There are a few additional requirements for employers with 100 or more but most are already applicable. For a FREE checklist of federal employment laws that apply to your company, call or email FiveL Company today.

OSHA Publishes New Workplace Poster

On February 12th the Occupational Safety and Health Administration ("OSHA") issued a press release announcing the publication of a new "It's the Law" poster, also known as the "OSHA Notice of Employee Rights." The poster is required to be displayed in every workplace in America. You should note, however, that the current edition of the poster is still valid; employers are not required to replace the existing poster with the new one. So if you get a phone call or solicitation in the mail indicating there is a new mandatory poster that you have to purchase -- DON'T!! You can download the new poster for FREE from OSHA's website or just go to FiveL Company's Forms and Resources page.