In the Eye of the Beholder

I had to chuckle; I recently read a headline and while I exaggerate a tad it really did read close to, "EEOC issues NPRM on RFOA for ADEA."  WHAT?!

Try this. Let's say you have two applicants for the position of front-line supervisor.  One applicant is 62 years of age with 20 years of supervisory experience.  The other is 39 years old also with 20 years of supervisory experience.  The 42 year-old has a college degree and while that is not required for the job it is preferred. You also have been trying to reduce your turnover and figure that the 62 year old might be considering retiring in a few years and you would really like to bring someone on board who would want to be a member of your team for years to come. So, based on the fact that the 42 year-old has a college degree you offer that candidate the job. Now...age was a factor in your decision but it was not the factor in your decision.  The main reason you hired the 42 year old was because of the college degree (at least let's say that's the case for this scenario). So is your use of the college degree a "reasonable factor other than age" (RFOA) in making your hiring decision? Or did you just violate the federal Age Discrimination in Employment Act (ADEA), which generally covers employers with 20 or more employees and prohibits discrimination against individuals age 40 and above?

On February 19, 2010 the U.S. Equal Employment Opportunity Commission (EEOC) issued a Notice of Proposed Rule Making (NPRM) (see how we're getting the acronyms in here?). The NPRM is 17 pages long (quite short in regulatory terms) and the actual, proposed regulation is just slightly more than one full page.  The remaining 16 pages explain the proposal.  Now I warn you, brace yourself. Because if you get frustrated when the very term that is to be defined is used in the definition, it's about to happen twice.  The proposed regulation reads, in part, "A reasonable factor is one that is objectively reasonable when viewed from the position of a reasonable employer...under like circumstances."  Huh? The good news is that some clarification is provided.

The proposed regulations reads that factors relevant to determining whether an employment practices is reasonable would include but are not limited to:

• Whether the employment practice and the manner of its implementation are common business practices;
• The extent to which the factor is related to the employer's stated business goals;
• The extent to which the employer took steps to define the factor accurately and to apply the factor fairly and accurately (e.g., training, guidance, instruction of managers);
• The extent to which the employers took steps to assess the adverse impact of its employment practice on older workers;
• The severity of the harm to individuals within the protected age group; and
• Whether other options were available and the reasons the employer selected the option it did.

So What Now?

• The regulations mention "unchecked discretion" of managers ten times within just four pages.  Be proactive. Train your managers now about all forms of discrimination, including adverse impact (unintentional discrimination) based on age and other factors and how their actions can create or reduce liability.
• The notice and comment period on this proposed regulation remains open through April 19, 2010. Business owners, managers and HR professionals should review this regulation and submit comments individually or through local professional and trade associations such as the U.S., state or local chambers of commerce or the Society for Human Resource Management.

 Hot Hits!! Education Corner

March's Public Seminars & Presentations

Presented by Christine V. Walters, MAS, JD, SPHR

Wednesday, March 3rd, "Credit Checks Under Fire" a webcast sponsored by SHRM featuring Leslie Silverman, former EEOC Vice Chair; Christine V. Walters; and Michael Layman, SHRM's Manager of Labor & Employment, 3:00 - 4:30 p.m.

Thursday, March 4th, "Legal Update," Columbia, MD 9:00 a.m. - 4:00 p.m., sponsored by the MD & DC CUA. 

Tuesday, March 16th, "Pain Relief for HR's Top Headaches," Chevy Chase, MD, 12:45 - 1:30 p.m., sponsored by Professional Benefit Solutions, Inc.

Thursday, March 18th, "To Pay or Not to Pay: The Latest News in Wage & Hour Administration," presented during SHRM's 2010 Employment Law & Legislative Conference, Washington, DC. 10:15 - 11:30 a.m.

   March's Client Training Programs 

"HR & the Law for Managers"

NEXT WEBCAST!

March 24, 2010 10:00 - 11:00 a.m. EST

"To Pay or Not to Pay: The Latest in Wage & Hour News"

It seems wage and hour questions never escape the headlines. On December 9, 2009 the U.S. Department of Labor hosted a webcast during which they described plans for regulatory changes in 2010. Do you know what they are?

Then we get record snowfalls and employers ask about pay issues related to inclement weather. When do you have to pay for snow-related absences, how much and to whom?  Then suddenly headlines pop-up about rest and meal periods creating legal liability for employers. Join this interactive webcast as we review wage and hour issues in the news including and not limited to:

• Legislation pending on Capitol Hill that would mandate paid leave, when and how it is to be administered;
• Inclement weather policies and practices for exempt & non-exempt employees;
• When, to whom and how rest and meal periods should (not) be administered;
• Worker versus employee classifications (independent contractor) as well as exempt/non-exempt
  Click here (then click on "Upcoming" tab) for more information or to register.

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