By Victor Kang, Esq.

Rubin Lublin,LLC*

USFN Member (AL, GA, MS, TN)

As we move into the post-COVID world where companies are battling staffing shortages and remote workforce demands, a new struggle for employers is how best to meet these challenges by leveraging technology. By now, everybody in the default services workforce has most likely used Zoom, Webex, Go-To-Connect, and probably has had nightmares with that incessant Teams notification rattling in your brain (bumm-bumm-bloop-bloop-dahbumm-bumm). No matter how the workforce is structured, there are elements of technology that intrude into all areas of work.

With that in mind, what do you do if you have employees who refuse to learn or adapt to this new era of communication? What are your options if an employee continues to ignore company policies that attempt to automate or create efficiencies through use of new advances? As an important, but often ignored, aspect of DEI, ageism is something that all employers must be careful to not perpetuate in their human resource decisions.  In 2020, more than 20,000 age discrimination complaints were filed with the U.S. Equal Employment Opportunity Commission. The AARP says that almost two out of three workers who are 45-plus years old- have seen or experienced age discrimination in their workplace. In the same survey, 91% of those respondents said that age discrimination is common.

Inevitably, there will be situations where you may have to move forward and separate from an employee due to their inability to adapt. Here are some pointers on how to avoid potential discrimination lawsuits or challenges to your company’s policies.

1.      Document Everything!

Under the Age Discrimination in Employment Act of 1967 (“ADEA”), workers ages 40 and over are protected from age discrimination in the workplace. This means that an employee cannot face harassment, discrimination, termination, or pressure to retire because of their age. This protection should be factored into all actions taken to remediate or correct an employee who is protected. Additionally, depending on your jurisdiction, terminated employees may ask for a reason or documentation. Even for states that are at-will employment, the terminated employee can (and often will) file a complaint with state or federal authorities (State Department of Labor or the Equal Employment Opportunity Commission). It is paramount that your managers document effectively that the employee was given proper trainings, re-trainings, and other remedial measures to give them every chance to learn the new skills.

2.      Provide Trainings and Skill Assessments

When you hold trainings on new technologies, do not exclude older workers. Make sure that trainings are crafted to all skill levels; do not assume that all staff have similar backgrounds.  Some may require more personalized trainings, and age should not factor into who gets more attention. Document each additional training and require acknowledgement from the staff; require read receipts or written signatures as part of your training. Prepare knowledge and skill tests that require a passing score. With more layers of training documentation and skill assessments, you can document that any potential remedial actions are justified and based solely on skill set and aptitude.

3.      Review Potential Accommodations Within Reason

If you come across situations where staff members cannot or will not learn the new skills, a potential alternative is to see if there are any other job functions that may require less technical skills. Perhaps there are roles that require more manual duties. This form of accommodation, especially for protected classes, can show that you exhausted all options. Be careful, however, not to allow certain people to be held to a different standard of duties. Even though staff under 40 may not be protected from age discrimination, you may unintentionally create a toxic work environment if any staff member is immune from client systems or online meetings. Ironically enough, the thought of not forcing an older worker to learn newer technology to prevent ageism claims might backfire and lead to MORE discrimination because of resentment from co-workers. You might start hearing derogatory nicknames because other staff members have to create workarounds for the employee. 

4.      Stay Consistent Among ALL Staff

When you are ready to move forward with a write-up, consult with your HR manager to create a clearly worded action plan. Make sure to list out all trainings, meetings, one-on-ones, and other proof that the employee was given the same (or additional) training. Including additional verbiage to clarify that these new tasks are a result of client/court requirements (i.e., using BKFS, Serengeti, e-File, PACER, Tempo, etc.) or essential communication tools for remote work will demonstrate that you are not arbitrarily creating processes to target the employee’s lack of skills. For example, if an employee is a fully remote worker, you have justification to require them to use Zoom, Teams, or other communication tools to facilitate contact with them. Requiring the use of other technology, like logging billable hours through web-based applications, using e-faxes, scanners, and webcams can all be an essential part of the job if the requirements are equally applied.

5.      Spread The Wealth

Termination is not the only time age discrimination can occur under ADEA. In considering promotions and compensation, age cannot be a factor in your analysis. One question all companies and firms may deal with is how to compensate or account for aging employees who may show decline in efficiency and productivity as they age. An employment attorney, in conjunction with your HR manager, should be able to help navigate this conundrum. But, as with all other areas, focus solely on the skill set and utility of the worker. Use measurable metrics (files touched, accuracy rates, internal performance scorecards) that cannot be attributed solely to age to avoid challenges of discriminatory promotions or raises.

6.      Hire Younger? Not So Fast!

Perhaps by only hiring younger applicants, you think you can avoid some of the issues touched on above? That’s definitely not the right way to proceed. Another area under the ADEA that can be a potential issue is discriminating applicants based on their age. Searching the internet for an applicant’s age or looking at the year a candidate received their degree on a resume, are major missteps and something that ADEA does not allow. The recommendation is to have blind resume reviews where school graduation dates are obscured. Also, to avoid age discrimination, create knowledge or skill-based tests that can be used to differentiate prospective candidates based solely on ability and not age. For example, use a combination of basic knowledge tests (math/grammar/attention to detail) and computer skills aptitude tests (create dummy files in your client system and give them simple instructions to locate a file by loan number, typing speed tests, internet- and MS Office-skills tests). Most recruiting sites like Indeed, ZipRecruiter, SimplyHired and Monster will have examples of skill tests.

7.      Don’t Underestimate An Ageism Claim

While ageism claims are viewed as sometimes harder to successfully prove compared to other discrimination suits, bear in mind that a plaintiff who successfully sues an employer for age discrimination under the ADEA can potentially recover back pay, lost benefits, and equitable relief including front pay, along with attorney’s fees and damages. Front pay covers the loss of income that may continue to occur after the trial is over. Some examples of damages paid include $15.4 million from the LA Times to a sportswriter and $11 million from Google to over 200 plaintiffs. These damages can cripple a company, so the risk is extremely high and worth avoiding at all costs. The root of most of these cases originated from mass layoffs. Unfortunately, during the COVID pandemic, almost every firm and company was affected by the moratoria against foreclosure and eviction actions.  Hopefully, we never experience that again, but if you find yourself having to undertake layoffs, make absolutely certain that age is not a factor. You must not consider how soon they may be near retirement age; while it may seem logical to force someone out with an early retirement, an involuntary termination can lead to potential claims.

Companies ultimately want to avoid all forms of discrimination. In addition to the federal protections offered under the ADEA, consult with an employment attorney to make sure any actions you undertake do not run afoul of any state or local guidelines. Some jurisdictions may have additional constraints on top of state or Federal guidelines. Ageism and technology, unfortunately, are linked at the hip, so take the time to foster a collaborative environment for all backgrounds. Steer clear of stereotypes and have a diverse workforce. Consult your HR manager and employment attorney when implementing new policies that could be viewed as targeting those over 40. In the end, just like with any other protected class, equal treatment of all is the basic tenet to avoid issues.

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Fall 2022 USFN Report