A new investigative report from Mother Jones and ProPublica alleges that for years, blue chip company IBM has pushed out employees over the age of 40 to replace them with younger workers. Age discrimination in the workplace is prohibited by federal law and New Jersey state law. It is believed that in the past five years, roughly 20,000 IBM employees over the age of 40 were laid off in the U.S., with the actual number likely higher than that, according to the report.
New Business Focus Drove Harsher Reviews
When IBM decided to pursue a business strategy centered on data analytics and cloud services, the cuts and layoffs began. Former workers say that performance reviews suddenly became much harsher. Presentations to senior executives emphasized a need for a “correct seniority mix,” and a headcount mix that included “a greater percentage of early professional hires.”
ProPublica was able to gather information for the report through a questionnaire completed by over 1,100 former IBM employees. They provided official company documents, interviews, and shared experiences. Some of them felt if they did not accept early retirement packages they would be fired outright. To receive severance packages, they had to sign a waiver to not pursue age discrimination complaints in court, leaving arbitration as their only remedy. Generally, workers over the age of forty (40) are entitled to certain protections under the Older Workers Benefit Protection Act (OWBPA).
Many of these workers were told they could apply for other jobs within the company. However, the investigation revealed that internally, managers were discouraged from rehiring the laid off employees. Those that were brought back on came back at lower pay rates and with fewer benefits.
Skirting the Law
According to the investigation, IBM used several strategies to get around federal laws and regulations that protect older workers. Workers were denied information that would have helped them realize they were victims of age discrimination. Further, they were required to sign away their right to pursue such claims in court. IBM also tried to reduce the number of changes in personnel that would count as layoffs, because high numbers of layoffs are required to be disclosed publicly. Instead, they took steps to boost resignations, firings, and retirements.
Forced arbitration has become the subject of controversy with the advent of the #MeToo movement, which charges that the practice forces victims of sexual harassment and other discriminatory behavior to remain silent about what happens in the workplace. Employers often argue that the arbitration process keeps the cost of litigation in check. But studies on arbitration have shown that employee outcomes are much less successful in the arbitration processes, compared to cases that are tried in civil court.
One study done by a Cornell University law and labor relations specialist found that employment claims settled in federal court are won by workers 36 percent of the time. In state court, workers won 57 percent of the time. However, workers won only 19 percent of the complaints taken to arbitration.
According to employment litigator, Tony Morgano, in recent years there has been a lot of litigation over arbitration clauses in employment agreements. New Jersey Courts have begun to carefully scrutinize and strike down such agreements. Recent Court cases including Atalese v. U.S.Legal Services Group LP and Anthony v. Eleison Pharmaceuticals have held that in order for an arbitration agreement to be binding, the agreement must clearly waive statutory employment claims and must clearly state that the employee is waiving his or her right to a jury trial.
Atlantic County Employment Discrimination Lawyers at Levine Staller Represent Victims of Age Discrimination
If you believe your age has made you a victim of discrimination in your workplace, contact an experienced Atlantic County employment discrimination lawyer at Levine, Staller, Sklar, Chan & Brown, P.A. to review your legal options. Our dedicated team has more than 25 years of experience obtaining justice and compensation for satisfied clients. Call 609-348-1300 today or contact us online to schedule a consultation in our Atlantic City offices. We serve communities throughout New Jersey including in Atlantic County, Ocean County, and Cape May County.