Human side – 2005-05-01

By Raymond Dreyfack, Contributing Editor May 1, 2005

Age discrimination: Is your plant vulnerable?

As I view it, the recently widened Supreme Court protections against age discrimination in the workplace trigger two key questions:

  1. Is my company a candidate for court action stemming from age discrimination?

  2. (Of equal if not greater importance) Are we getting maximum productivity yield from our older employees?

    1. In a nutshell, the ruling opens the door for older workers in companies with payrolls of 20 or more to claim discrimination based on “disparate impact” rather than discriminatory intent. To escape unscathed, an employer must prove the existence of a “reasonable factor” in response to a grievance. In short, if X receives a 3-day suspension for a time card abuse, under ordinary circumstances you can’t fire Y for the same offense without a convincing explanation.

      Court Action: How Big a Concern?

      Big enough, considering that as Denver-based consultant Sheldon Steinhauser points out, about 20% of discrimination charges filed by the Equal Employment Opportunity Commission (EEOC) are for age discrimination. What’s more, awards are substantially higher than for cases involving race, sex, or disability. The average age-based award, he adds, is $219,000. That’s a chunk of change worth being concerned about, especially since the Supreme Court edict specifies that the discrimination charged need not be intentional. It is no surprise that Steinhauser alerts corporate managers to take a long hard look to ensure that “the age bias pendulum is not swinging in their direction.”

      Productivity Factor

      Sue Shellenberger asks in a Wall Street Journal article: Are Employers Out of Step With Older Employees?” You be the judge. AARP invited 10,000 employers to compete for a listing in Modern Maturity magazine as one of the best places for workers over 50 to work. The yawn-producing response — 14 applicants. Fourteen out of 10,000.

      Out of step indeed — out of step with reality. Some companies, wanting to cut the payroll, offer early retirement incentives. When new employees are wanted, they turn to college campuses. Not only out of step in my opinion, but marching to strange and inharmonious music. It raises the question: Doesn’t experience matter any more?

      Some years back, managing the 30-employee data processing department at Faberge’ Perfumes Inc., in response to a space shortage I organized an after-hours Working Mothers’ Shift. The average age of the 15 women hired ranged between 55 and 60. This crew’s morale and productivity were so superior to the day shift’s, comprised mostly of workers in their 20s and 30s, that the program’s success received widespread press attention. In my experience, in general, I have found older employees — even when temps or part-timers — to be more loyal, conscientious, and committed than their younger job-hopping counterparts. In addition, employees past 40 are especially valuable as trainers, mentors and, post retirement, as ad hoc consultants.

      Abusive Practices

      It makes no sense to mismanage any employee. Unfortunately, in some companies workers past 40 seem particularly prone to mismanagement. What follows are typical complaints from disgruntled older employees.

      • “My supervisor knows I won’t quit because of my age and takes advantage by increasing my workload.”

      • “I’m more likely to get a kick in the rear around here than a pat on the back.”

      • “I asked my boss more than once to adjust my starting and quitting times because I have young children in school who need to be dropped off and picked up. He says if he does it for me he’d have to do it for others.”

      • “I’m constantly being ridiculed and insulted because

      • of my age. My supervisor’s response is a deaf ear. It’s humiliating and makes me hate my job.”

      • “I have more know-how and experience than most employees half my age. But I get the most boring assignments because my boss assumes I am over the hill.”

        • Wake-up Call

          In the interest of productivity improvement and basic human decency, what can you do to smart-manage older employees as the valuable assets they can and should be instead of the liabilities they are perceived to be by some? For starters ponder the following tips.

        • Distribute a written corporate policy containing guidelines for the handling and treatment of older employees.

        • Evaluate and discuss job performance periodically.

        • Fine-tune work-life conditions so that they are realistically in line with the specialized needs of older employees.

        • Consider the advantages of a phased retirement program.

        • Train all personnel, and supervisors in particular, in the care and handling of older workers.

        • Of overriding importance: Combat rigidity. Organizations that stress flexibility — in working hours, work rules, and imaginative policy-making — are the most successful of all.

          • Finally, dear reader, if you are in your 30s, consider that if you have your share of good luck in this crazy screwed-up world, you may one day be in your 70s.

            Is a juror entitled to missed OT pay even on a Saturday?

            The important court case George Graham was on seemed to be winding down. Ernie Balkin, the juror’s supervisor, had called informing him that he was scheduled for overtime on Saturday.

            “Will you be off jury duty by then?”

            “I wish I was,” the welder replied. He explained he would have to refuse the overtime because the jury was being ‘locked up’ for the weekend.

            “No sweat,” his boss replied.

            Graham returned to work the following Thursday. On Friday being payday he collected his check. A rundown of the numbers prompted a visit to his boss’s desk.

            “What’s the problem?”

            “My pay is short,” Graham replied.

            “How so?”

            Graham showed him the check. “They omitted the Saturday overtime on my jury duty pay.”

            “You didn’t work overtime. When I called you turned it down. All you’re entitled to is the straight time you missed, minus the jury duty fee you received.”

            “According to the labor agreement,” the welder replied, “when on jury duty I’m supposed to be reimbursed for lost time incurred. It’s not my fault the jury was ‘locked up’ on Saturday.”

            Balkin scratched his head. “This is an unusual case. Let me check on it.”

            Question: Is Graham entitled to the overtime pay?

            Workman’s Decision : When Plant Engineer Craig Workman was handed the case to review he instructed Balkin to pay Graham the overtime.

            “For one thing,” he said, “the amount is too small to make an issue over. For another, this is such an unusual case we don’t have to worry about setting a precedent; for a third, the company will gain more by preserving Graham’s good will than antagonizing him. And for a fourth, the guy has a point: Had he been available he would have earned the extra money, so that absence resulted in an actual loss.”

            Can a leave for union business be limited?

            Mechanic Grade I and Shop Steward Larry Moore was a militant advocate of workers’ rights and highly regarded by union officials. He also had his eye on a job as a labor organizer. One day he was asked by the president of his local to participate in a long-term study being conducted by the union in an effort to evaluate union practices, help it do a better job for its members and, hopefully, improve recruitment efforts. It would entail taking a paid leave of absence.

            Moore was gung ho for the idea, “How long a leave are we talking about?”

            “Hard to say,” the official replied. “It could run several months.”

            “What about my service time benefits while I’m away on union business?”

            “According to the contract they will continue to accrue while you’re on leave.”

            Moore’s leave was granted. Ten months later he received a call from Tom Heady, his supervisor.

            “There’s been a lot of griping about your extended leave. The boss wants to know when you’ll return to work. “

            “I don’t know,” Moore replied, “but I’ll give you two or three weeks notice before coming back.”

            Heady said, “That’s not good enough, Larry. I’ve been instructed to inform you that if you don’t return within a month we’ll have to cancel your leave and terminate you.”

            “That violates the labor agreement,” Moore protested.

            Question: Can Larry be terminated if he fails to return to work within the time prescribed?

            Schmidt’s Decision : “Lay it on the line to Moore,” Plant Engineer Ralph Schmidt instructed Heady. “Clause 415 in the contract specifies that management’s right to grant leaves also includes the right to limit their duration. Without that clause, the guy could extend his leave indefinitely.”

            Can an outperforming junior get preference in a layoff?

            When the economic outlook turned slumpy, Maintenance Foreman Edgar Grossman found himself confronted with a decision no supervisor enjoys making, that of having to lay off people. In a huddle with Plant Engineer Mason Van Deft it was decided that the maintenance crew would have to be cut by two mechanics, a utility man, and an electrician.

            Reviewing the roster, Grossman saw no problem with the mechanics or utility man. Regarding the electrician, however, he was faced with a problem. His layoff choice was between Joe Reisman and Charley Romano. Charley was senior to Joe by more than two years, but Joe was by far the better performer. Not only was Joe faster and more efficient than Charley, his attitude and attendance were also superior. Joe’s absence would hurt the department severely. Much as he regretted having to lay off any employee, the operation would suffer a lot less from Charley’s absence than from Joe’s.

            When Grossman saw his name on the bulletin board’s layoff list, he lost no time hightailing it to his boss’s desk.

            “I’ve been screwed,” he protested. “How come you bypassed Joe Reisman and gave me the heave? My seniority’s two years better than his.”

            Grossman sat down with the electrician and reviewed a documented record of his and Joe’s comparative performance and rating.

            “Nothing personal,” he told Charley, “but my responsibility is to do what’s best for the department.”

            Than didn’t mollify Charley. “Laying me off instead of Joe violates the contract and I’m not sitting still for it.”

            Question: Can Grossman be forced to reverse his decision?

            Van Delft’s Decision : “Charley stays and Joe must be let go,” he told the foreman. “Wishful thinking is no substitute for plant policy and abiding by the rules in making a layoff. It would be nice to hold on the Joe, but unfortunately, his superior attitude and performance aren’t a factor in this case. The general rule is that employees holding the same classification, ability and skill notwithstanding, are deemed to be equal for layoff purposes. Let’s hope that the slump doesn’t last too long so that we can get Joe back on the payroll.”

            Is compulsory retirement a form of age discrimination?

            When 68-year-old maintenance department utility worker John Hawkins was informed by his boss, Foreman Ray Selden, that he would have to retire in compliance with the company’s age 65 retirement policy, he all but let out a howl.

            Hawkins claimed company policy had nothing to do with Selden’s decision and accused his boss of age discrimination.

            “Selden has it in for me,” he charged. “He’s been trying to get me to quit for months.”

            “That’s nonsense,” the foreman replied. He showed Hawkins the clause in the labor agreement that clearly specified age 65 as the required retirement age.

            “If 65’s the retirement age,” the worker countered, “how come Chuck O’Neil didn’t throw in the sponge until he was 70? And how come Ben Reddy is still working? He’s 69.”

            “Management decided we have to clamp down and start enforcing the contract because we’re starting a new pension plan.”

            Hawkins refused to settle for this explanation. “This is supposed to be a democracy,” he maintained. “I’m entitled to be treated the same as everybody else.”

            Question: Can the utility worker successfully oppose Selden’s decision to make him retire?

            Belcher’s Verdict : “Hawkins keeps his job,” Plant Engineer Mark Belcher ruled. “Requiring mandatory compliance at age 65 will have to be thrashed out when negotiations for the new contract take place. Having failed to enforce the age 65 clause in the past cancels our right to enforce it now, new pension plan notwithstanding.”

            Do extended holidays merit holiday pay?

            “Uh, oh,” groused Assistant Maintenance Foreman Jerry Kaufman to his boss, “with the Fourth of July coming up, we’ll probably be shorthanded again.”

            Foreman Arthur Wolfowitz knew what Kaufman was referring to. In many plants employee absence is highest around holiday time. Invariably, when that day rolls around, especially if it falls on a weekend, some employees take it into their heads to stretch their time off a day or two before or after the holiday. It’s a headache many supervisors must cope with.

            One such employee was Carpenter Grade II Joel Berner. Instead of returning to work on the day after the Fourth, his wife phoned in that he had a sore throat and couldn’t come into work. Wolfowitz, knowing Berner, was suspicious. This sounded to him like another case of the old holiday stretch.

            But there wasn’t a thing he could do about it. That is, not until the day Berner appeared at his desk a couple of days later griping about his paycheck. It was no surprise to Wolfowitz what his beef was about.

            “What’s the problem, Joel?”

            “The problem is I’ve been shorted on my paycheck.”

            “How do you figure that?”

            “An error was made. My holiday pay was omitted.”

            “That was no error; you’re not entitled to holiday pay. You were absent the day after the holiday.”

            Refusing to settle for that explanation, Berner threatened to grieve.

            The foreman shrugged. “Grieve away to your heart’s content.”

            Question: Should the carpenter receive his holiday pay?

            Murdock’s Decision : “No holiday pay for Berner,” Plant Engineer Phil Murdock told Wolfowitz. “Refer him to the clause in the labor agreement that states employees are required to work the last shift preceding and the first shift following a holiday to qualify for holiday pay.”

            Funeral leave: How ‘immediate’ must the family be?

            The company allowed a maximum of five days’ funeral leave in the event of a death in the family. According to the labor agreement, the provision applied to family members specified as mother, father, sister, brother, son, or daughter.

            When Air Conditioning Specialist Murray Gallanti’s stepfather died the employee was absent four days for a mourning period and to handle funeral arrangements. Upon his return to work he put in for funeral leave.

            Maintenance Supervisor Alan Provost acted surprised at the request. “You have my condolences, Murray, but the man who died was your stepfather. Funeral pay only applies to members of the immediate family.

            “Harry Crowell was my stepdad for more than 28 years. He took wonderful care of my mom, my sister, and me. He was as much a part of my immediate family as my real father would have been.”

            Provost was uncomfortable with Gallanti’s reply. “I don’t know what to tell you, Murray. But a rule is a rule.”

            The mechanic wasn’t satisfied with the answer. “Please do me a favor and check it out with the boss.”

            “Okay,” Provost replied, “but I can’t promise anything.”

            Question: Do you think Gallanti should receive funeral pay?

            Miller’s Response : “Give Murray the funeral pay,” Plant Engineer Charles Miller ruled. “In my experience, there have been cases where funeral leave was allowed for the death of stepparents, and other cases where it was denied. In Murray’s case, especially since the deceased had been his stepfather for a long period of time, his grief is apparently real and he’s entitled to the pay.”