How can you transition older workers if you can’t force them to retire?

A Michigan oral surgery practice has agreed to pay $47,000 to settle an age discrimination lawsuit filed by the EEOC. The agency alleged that it violated the ADEA by maintaining a policy that required employees to retire at at 65. The lawsuit stemmed from the firing of an employee four days after her 65th birthday.

According to Kenneth Bird, regional attorney for the EEOC’s Indianapolis District Office, “December 2017 marked the 50th anniversary of the ADEA, Five decades later, the EEOC remains committed to vigorously enforcing that all-important law. Private employers need to understand that mandatory retirement policies run afoul of the ADEA and will be met with challenge.”

He’s absolutely correct.

I’m lovin’ it: McDonald’s settles joint employer case with NLRB

It has been nearly four years since the NLRB filed complaints against McDonald’s, seeking to hold it liable as a joint employer for the unfair labor practices of its franchisees. I have suggested that “if franchisors are equal under the National Labor Relations Act with their franchisees, then we will see the end of staffing agencies and franchises as a viable business model.”

In the interim, the NLRB has flip-flipped on its joint employment standard several times, and this very important area of the law has been in flux.

Now comes word that the NLRB and McDonald’s have reached an 11th hour settlement.

The 5th nominee for the “worst employer of 2018” is … the pension preventer

ERISA section 510 provides:

It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan … or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan.

The Supreme Court has long interpreted this section as “protect[ing] plan participants from termination motivated by an employer’s desire to prevent a pension from vesting.” As the 6th Circuit noted, “[T]he prohibitions were aimed primarily at preventing unscrupulous employers from discharging or harassing their employees in order to keep them from obtaining vested pension rights.”

Late Friday, Attorney General Jeff Sessions fired former FBI Deputy Director Andrew McCabe late Friday. McCabe was (almost) a 21-year veteran of the Bureau, and was to have retired just two days later. The March 16 firing, however, prevented McCabe both from voluntarily leaving the FBI and collecting his federal pension.

WIRTW #498 (the “blarney” edition)

Photo by Khara Woods on Unsplash

Tomorrow is St. Patrick’s Day. Have you ever thought about what the Patron Saint of Ireland can teach us about employment-law compliance? I did, seven years ago.

Click here for 10 compliance challenges to chase out of your workplace.

Here’s what I read this week:

Harassment training is about creating a culture, not checking a box

Bloomberg reports that demand for anti-harassment training videos has surged in the #MeToo era.

Here’s the problem, however. The Bloomberg article talks about training videos, the absolute worst kind of training.

Anti-harassment training is all about creating an anti-harassment culture in your workplace—about employees understanding what harassment is, how to complain about it, and that your company does not ever accept it.

How your problem employee is like an old hot water tank

Last night, my hot water tank died. It was old (14, to be exact).

During his shower, I heard Donovan yell, “Dad, there’s no hot water, and I’m freezing!” On a hunch, I traveled down to the basement, which is where I found puddles on the floor under and around the tank.

To be fair, we ignored a whole bunch of signals over the past few years. 

Fluctuating water temperatures. A 50-gallon tank that would often deplete in a half-hour. Neighbors that had replaced theirs years ago. 

Which got me thinking … an old hot water tank is not all that different from your problem employee.

Tattoos at work: more acceptance, yet still some legal risk

By ABC TV [Public domain],
via Wikimedia Commons

I am not a tattoo person. Yet, a whole lot of people are. And the numbers are increasing.

In fact, according to one recent survey, 3 in 10 Americans have at least one tattoo, up 50% in just four years. And, the younger you are, the more likely you are to sport a tattoo: 47% of millennials have a tattoo, as compared to 36% of gen Xers and only 13% of baby boomers.