Posts tagged with "age"

Firing to Prevent Pension Vesting, Without More, Does Not Violate ADEA

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In this economy, companies are terminating employees in an effort to increase share value or simply improve the bottom line.  Often it is the older, more senior, and more costly employees that are the first to go.  The question sometimes arises: “Can my employer fire me to prevent my pension from vesting (thereby saving itself money) without violating the Age Discrimination in Employment Act?”  The short and surprising answer is “yes,” assuming the absence of other critical allegations necessary to sustain an ADEA claim.

A Relevant Case

In a case out of the Second Circuit Court of Appeals, a Connecticut employee alleged in his Complaint only that “he was fired by defendants because he was nearing the age of retirement.”  The lower court dismissed this claim and the appellate court affirmed because this was the only fact alleged in the Complaint as evidence of age discrimination.  The United States Supreme Court has held that the firing of an employee to prevent his pension benefits from vesting does not, without more, violate the ADEA.

What essential allegations were missing?  In order to prevail, the plaintiff had to allege facts evincing that his employer was using pension status as a proxy for age, in order to discriminate on the basis of age.  How could he do that?  One way would be to plead and prove that his pension vested due to age and not years of service.  While age and years of service are empirically connected, the Supreme Court has said that they are “analytically distinct.”  What the Complaint lacked were additional allegations supporting a claim of age discrimination, for a successful ADEA plaintiff must prove that age actually motivated the employer’s decision.

The take-away from this case is that victims of age discrimination should consult with an experienced employment law litigator to ensure that an actionable claim is properly alleged in a Complaint.  In the case referred to above, it is impossible to say whether the plaintiff would have prevailed with a more artfully crafted Complaint.  What we do know is that his bare-bones Complaint was dismissed as insufficient without ever being heard on its merits.

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The employment law attorneys in the Westport, Connecticut office of Maya Murphy, P.C. have extensive experience in the negotiation and litigation of all sorts of employment-related disputes and assist clients from Greenwich, Stamford, New Canaan, Darien, Norwalk, Westport and Fairfield in resolving such issues. Please contact Joseph Maya and the other experienced attorneys at our Westport office at 203-221-3100 or JMaya@Mayalaw.com to schedule a consultation today.

Employer Not Liable for Doing “Stupid” or Even “Wicked” Things

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Case Background

Employment discrimination laws protect employees from discrimination.  They do not protect against “ordinary workplace experiences” that offend one’s sensibilities or result in hurt feelings.  A Connecticut woman found that out the hard way when a Court of Appeals affirmed the trial court’s grant of summary judgment against her.  There was no dispute as to any material fact and the employer was entitled to judgment as a matter of law.  Thus, there was no need for a trial on the merits.

The employee in question was fired from her “at will” position as Public Relations Coordinator for a large corporation because of her volatile workplace behavior spanning three years.  She claimed that she was fired because of her age, and that she had suffered intentional infliction of emotional distress as a result.

Establishing a “But For” Cause

Under the applicable law, the employee must first establish a prima facie case of discrimination.  If she does, the burden then shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse employment action.  Assuming such a reason, the employee may then prevail if she can show that the employer’s action was in fact the result of discrimination, i.e., that the stated reason is “pretextual.”

The employee must further prove that age was a “but for” cause for the challenged action and not merely a contributing or motivating factor.  In this case, the employee was unable to show that her age was the sole, i.e., “but for” cause of her termination.

Conclusions

In fairness to the employer, the employee’s insubordination was evident from the record.  On one occasion, the employee asked her manger if she had “stopped taking her medication.”  Nor did some favorable evaluations raise a genuine issue of material fact as to pretext.  The court concluded that isolated positive feedback was entirely consistent with the explanation for her termination: sporadic inappropriate behavior over the course of several years.  A reasonable jury would have no reason to doubt the employer’s explanation for the employee’s discharge.

The employee also complained about the “tone” that was used with her and that she was “distraught” about negative comments she received.  This formed the basis for her claim of intentional infliction of emotional distress.  The court had no trouble dismissing this claim, as well.  “These ordinary workplace experiences clearly do not rise to the level of being ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society.’”

It was in this context that the court made the observation that employers are not liable for doing stupid or even wicked things in the absence of a sufficient connection between the employee’s age and termination of her employment.

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The employment law attorneys in the Westport, Connecticut office of Maya Murphy, P.C. have extensive experience in the negotiation and litigation of all sorts of employment-related disputes and assist clients from Greenwich, Stamford, New Canaan, Darien, Norwalk, Westport and Fairfield in resolving such issues. Please contact Joseph Maya and the other experienced attorneys at our Westport office at 203-221-3100 or JMaya@Mayalaw.com to schedule a consultation today.

What to Know About Your Non-Compete Agreement

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In the current economic environment, understanding your obligations under a non-compete agreement could be essential to finding new employment. In uncertain times, an employee may not understand that not all non-compete agreements are enforceable. Here are seven (7) important things to know about non-compete agreements.

(1)  Courts Do Not View All Non-Compete Agreements Equally:

Courts view non-compete agreements ancillary to the sale of a business or between partners differently than they view non-compete agreements between an employee and employer. “When an employee agrees to be subjected to future work restrictions, he or she does so in order to obtain employment and ordinarily gets nothing in return for giving up this important freedom.  Thus the employee is at a great bargaining disadvantage.”  CT Cellar Doors, LLC v. Stephen Palamar, 2010 Conn. Super. LEXIS 3247, J.D. of Waterbury, Docket No. UWY-CV-10-5016075-S (2010). Therefore, the courts will view such a non-compete with great scrutiny.

(2)  Reasonableness Requirement:

By definition, a non-compete is a restrictive covenant that prevents employees from competing with their former employers after termination, thereby creating a restraint on the free market. Given this, Connecticut courts may find that these covenants are against public policy. Consequently, non-compete agreements are only enforceable if the restraint imposed is reasonable.

(3)  Courts Consider Multiple Factors in Evaluating the Reasonableness of a Non-Compete:

In deciding whether a particular non-compete agreement is reasonable, the court will look to the following factors: “(1) the length of time the restriction operates; (2) the geographical area covered; (3) the fairness of the protection afforded to the employer; (4) the extent of the restraint on the employee’s opportunity to pursue his occupation; and (5) the extent of interference with the public’s interests.” Robert S. Weiss and Associates, Inc. v. Wiederlight, 208 Conn. 525 (1988). The Connecticut Appellate Court has instructed that “the five pronged test is disjunctive; a finding of unreasonableness in any one of the criteria is enough to render the covenant unenforceable.” New Haven Tobacco Co., Inv. v. Perrelli, 18 Conn. App. 531 (1989).

(4)  Involuntarily Termination Not Required:

A prevalent feeling among employees is that if “let go,” a non-compete should not apply.  However, this is not the law. When reviewing a non-compete agreement for reasonableness, the Court will not look to whether the employee left his position voluntarily or involuntarily.

(5)  Geography:

“The general rule is that the application of a restrictive covenant will be confined to a geographical area which is reasonable in view of the particular situation.” Scott v. General Iron, 171 Conn. 132 (1976) (upheld statewide restriction). Geographic restrictions should be “narrowly tailored to the plaintiff’s business situation.” Robert S. Weiss & Associates, Inc. v. Wiederlight, supra, 208 Conn. at 531. In CT Cellar Doors, LLC v. Stephen Palamar, supra, the Court held that a three-year restriction that covered the entire State of Connecticut was unenforceable, unfair and an unreasonable restraint of trade and was contrary to public policy.

Compare that to Robert S. Weiss and Associates, Inc. v. Wiederlight, supra, where the Supreme Court held that a two-year restriction that covered a 10-mile radius of Stamford, was narrowly tailored and therefore reasonable.  See also, Access America, LLC v. Mazzotta, 2005 Conn. Super. LEXIS 2597, J.D. of Middlesex, Docket  No. CV-O5-4003389 (2005)(15-mile restriction upheld); compare, Trans-Clean Corp. v. Terrell, 1998 Conn. Super. LEXIS 717, J.D. of Fairfield, Docket No. CV-97-0348039-S (1998) (60-mile restriction held unreasonable).

(6)  Duration:

Connecticut courts have frequently enforced non-compete periods of a year or more.  However, the courts have stated that the reasonableness of time and geographic restrictions in non-compete agreements are intertwined and “that broad geographic restrictions may be reasonable if the duration of the covenant is short, and longer periods may be reasonable if the geographic area is small.” Van Dyck Printing Company v. DiNicola, 43 Conn. Supp. 191 (1993), affirmed per curiam 231 Conn. 272 (1994) (one year);  Robert S. Weiss & Assoc. v. Wiederlight, supra (two years); Hart Nininger & Campbell Assoc. v. Rogers, 16 Conn. App. 619 (1988) (two years); Scott v. General Iron & Welding Co., 171 Conn. 132 (1976) (five years); Torrington Creamery, Inc. v. Davenport, 126 Conn. 515 (1940) (two years).

(7)  Forfeiture Clauses:

Forfeiture clauses differ from non-compete agreements in that the employee does not make an express promise not to compete, but rather agrees to a forfeiture of benefits if the employee engages in competition with its former employer. Despite this difference, the Connecticut Supreme Court has held that “a covenant not to compete and a forfeiture upon competing are but alternative approaches to accomplish the same practical result.” Deming v. Nationwide Mut. Ins. Co., 279 Conn. 745 (2006). Consequently, forfeiture clauses are subject to the reasonable requirement of non-compete agreements.

Conclusion

Before signing a non-compete agreement, speak to an attorney who is well versed in the law surrounding restrictive covenants and employment contracts.  If you have already signed the non-compete agreement, contact an attorney before pursuing a course of conduct that might violate a non-compete clause. A violation of a non-compete may result in legal action brought against you by your former employer, whether or not such agreement is enforceable.  Situations involving non-compete agreements are very fact specific, requiring case-by-case analysis.

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If you have any questions relating to your non-compete agreement or would like to discuss any element of your employment agreement, please contact Joseph C. Maya, Esq. by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com

What To Know About Your Severance Package

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During these economic times, many companies big and small, are facing the hard reality of layoffs. As hard as it is for companies, it is even harder for employees. Faced with no job and a bare economy, accepting a severance package might seem like the best choice.  But before signing anything, it is important to understand the basics of the severance package and the potential rights that might be relinquished in the process.

(1)  Time to Consider the Severance Package:

A prevalent misconception is that all employees are entitled to twenty-one (21) days to review severance package offers. Unfortunately, that is not the case.  In the case where the employer is only offering a severance package to one employee, and that employee is under the age of forty (40), there is no specific time to review the documents that is required by law. However, as the severance package must be made “knowingly and voluntarily,” that allows the employee some time to consider the severance agreement.  There is no statutory minimum amount of time.

If, however, the employee being offered the severance agreement is forty (40) years or older, he or she is protected by the Age Discrimination in Employment Act (“ADEA”) of the Older Workers Benefit Protection Act (“OWBPA”). By law, when only one employee is offered the severance agreement and a release of ADEA claims is included, the employer must provide the employee with twenty-one (21) days to review and consider the proposed severance agreement. Moreover, if the employer and employee engage in negotiations, the consideration period commences on the date of the employer’s final offer.

If more than one employee is terminated at or around the same time, it is considered a “group layoff.”  By law, when a severance agreement is offered as part of a group layoff, and a single employee is over the age of forty (40), and a release of ADEA claims is included, then every employee regardless of age must be given forty-five (45) days to consider the agreement.

(2)  Release of Claims:

Most severance agreements contain a release of a variety of claims, including claims you may have based upon your age, race, national origin, gender, disability, religion, among others. It may also include a release of all claims, whether known to you or not at the signing of the agreement.

However, the United States Equal Employment Opportunities Commission (“EEOC”) has held that, although the severance agreement may restrict the employee’s ability to file a lawsuit, the release cannot restrict the rights of an employee to file a charge of discrimination with the EEOC, nor can the severance agreement limit an employee’s right to testify, assist or participate in an investigation, hearing or other proceeding conducted by the EEOC. Furthermore, the EEOC has declared that an agreement cannot waive an employee’s rights regarding acts of discrimination that occur after the signing of the agreement.

(3)  Seven (7) Day Revocation Period:

When a severance agreement contains an ADEA release of claims, by law, the employer must provide you with seven (7) days to revoke the agreement after signing it. This seven (7) day window cannot be waived or changed by either party.

(4)  Ability to Consult with an Attorney:

Severance packages generally contain more than just the release of ADEA claims, but also claims under Title VII of the Civil Rights Act, Americans with Disabilities Act, Employee Retirement Income Security Act, retaliation, whistle blowing, breach of contract, invasion of privacy, among others. Given the breadth of the claims released, before the signing of a severance agreement, it is extremely important to consult with an attorney prior to its execution.

Moreover, when the severance agreement contains a release, the agreement must specifically advise the employee to seek the advice of any attorney.  Faced with financial distress because of the layoff, you may not be able to think objectively concerning your rights and options. It is best to consult an attorney.

(5)  Consideration:

Consideration is required for every agreement. That means that an employee must receive something of value in exchange for giving up certain rights. That “something of value” must be above and beyond what the employee would otherwise be entitled to.

(6)  Ability to Negotiate:

Despite the “take it or leave it” undertones of an employer, generally, many employers will negotiate severance on some level. Given that, there is also a risk that an employer will revoke the offer of severance if negotiation is attempted.  Your chances of negotiating successfully increase if there is a claim that your particular severance package is not fair in light of your industry, your position, or the circumstances of your employment.  Additionally, the negotiations do not need to focus on the dollar amount connected with the severance agreement.  Employers might be willing to extend insurance coverage, disability benefits, or other items.

(7)  Gather All Information:

Before deciding to accept, negotiate, or reject a severance package, it is important to understand completely what is being offered to you, including compensation, benefits and insurance.  If you are in an industry that provides for deferred stock options or bonus, it is important to understand whether you would still be entitled to it.   You should gather information concerning your employer’s welfare plans, health plans, vacation and sick leave policies, as well as any structured bonus plans or stock options.  If the severance package is only offering you what you would be entitled to, the agreement may lack adequate consideration.

(8)  Restrictive Covenants:

Many employers will place some kind of restrictive covenant into the severance package. These range from confidentiality clauses, to non- disclosure agreements, to non-solicitation agreements, to non-compete agreements.  Therefore, it is important to understand how signing the severance agreement may restrict your ability to find new employment.

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Before you sign a severance agreement, it is important to fully understand your rights and the consequences of accepting the offer. The attorneys at Maya Murphy, P.C., have years of experience in all sectors of employment law. If you have any questions relating to your severance agreement, please contact Joseph C. Maya, Esq. by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com.

I Was Laid Off Due to Restructuring, but My Position Was Filled Two Days Later. I Was Forced to Sign a Separation Agreement. Can I Sue for Compensation in Connecticut?

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An at-will employee can be terminated for any lawful reason in Connecticut.  For example, if you are an at-will employee, your company can terminate you for “restructuring,” even if they fill your same position days later.  Technically, an at-will employee is owed no explanation for termination.   Regardless, there are exceptions to an employment at-will termination.  You may not be terminated in any such way that violates your civil rights.

An example of this would be if you were terminated for your age, gender, or race.  Whether you have been terminated for any one of these reasons would rely heavily on the specific facts of the case.  To determine whether you may sue for compensation it would be important to sit down with an experienced employment attorney to go through every fact and circumstances of your employment.

In the same respect, you may have a claim for compensation if you were forced to sign the separation agreement under fraud or misrepresentation.  Again, it is important to describe to an employment attorney every detail about the separation agreement to determine your case.

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If you have any questions relating to wrongful termination or other employment matters, do not hesitate to contact Joseph Maya and the other experienced employment law attorneys at Maya Murphy, P.C. at (203) 221-3100 or JMaya@Mayalaw.com to schedule a free initial consultation.

What is Employment Discrimination in Connecticut?

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While the law does not protect employees from all types of behavior, it does protect employees from discrimination and harassment.  Accordingly, it is a violation of the law for an employer to refuse to hire or promote a person, or to discipline, terminate, harass or otherwise treat an employee differently because of certain characteristics.  These characteristics include:  (1) race or color; (2) national origin; (3) religion; (4) age; (5) sex/gender (including pregnancy and medical conditions relating to pregnancy); (6) sexual orientation; (7) physical or  mental disability, including learning disability; (8) genetic information; (9) marital status; or (10) in certain circumstances, criminal record.

If you have any questions related to sexual harassment and discrimination in Connecticut, please contact Joseph C. Maya, Esq. at (203) 221-3100 or e-mail him directly at JMaya@Mayalaw.com.

The Older Workers Benefit Protection Act of 1990

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Being laid off from a job is enough of a confusing and disheartening experience.  Adding to the complexity of severance packages and Separation Agreements is the potential for an age discrimination claim, a prospect that companies go to great lengths to prevent.  It is not infrequent for companies to lay off senior workers in favor of younger employees who will cost less to the company. In doing so, companies may open themselves up to an age discrimination claim.

If you believe that you have been laid off due to your age, it is vital to explore your options before signing the Agreement, as a signature often means a release of all potential claims against your employer. The employment attorneys at Maya Murphy, P.C. have experience in these types of claims and can take the lead in reviewing and negotiating a Separation Agreement.

The Older Workers Benefit Protection Act

In response to a 1989 landmark Supreme Court decision, Congress passed the Older Workers Benefit Protection Act of 1990 (“OWBPA”), requiring that a Separation Agreement contain certain provisions and amending the Age Discrimination in Employment Act (“ADEA”), which prohibits employers from discriminating against employees 40 years of age or older, to include employee benefits. Specifically, the statute gives a terminated employee a time period in which to review the Agreement before signing and the opportunity to rescind approval of the Agreement subsequent to signing.  It ensures that no employee is pressured into signing legal waivers of their rights under the ADEA.

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Connecticut’s Commission on Human Rights and Opportunities (CHRO) website (http://www.ct.gov/chro/site/default.asp) as well as the U.S. Equal Employment Opportunity Commission’s site (http://www.ct.gov/chro/site/default.asp) provide valuable information and resources on the topic of age, and other types, of discrimination.

In addition, the attorneys at Maya Murphy, P.C. have extensive employment experience and are ready to assist with any issues relating to employment contracts, severance packages, and potential discrimination claims.  Should you have any questions, please contact the Maya Murphy office located in Westport at 203-221-3100.