don't trip on them.
It's been a while since we've made a blog entry. Yes, that does mean that business is good. Generally, though, that means that our clients are facing some very challenging times. Inevitably, when economics go south, our workload goes north.
The workload during these tight times is not only heavier, but it's composition is noticeably different. Many of us on the L&E team spend time acting as "counselors-at-law"; that is, we're outside in-house counsel for our clients. We aren't necessarily getting calls because a charge of discrimination has been filed or suit papers served. Rather, our clients have everyday human resource questions and need an outsider's take and opinion on the matter.
Such is not necessarily the case in times like these. The phone calls are not as numerous. The e-mail notification window doesn't pop as frequently. But we're certainly not out enjoying quiet time. We're busily working on charges of discrimination and employment-based lawsuits that face our clients. Down economic times mean employees who are more sensitive to potential changes in the work environment.
As companies look for line items on the budget to reduce, the financial eyes inevitably hone in on training. Yet these are the times when that training--be it anti-harassment/-discrimination, leadership, managing borderline employees, and the like--is most vital. Now is the time to educate your supervisors and managers on employment laws, remind them of their responsibilities under your policies, and encourage them to consider the potentially magnified impact of their words and actions with their employees.
That's not to say that you and your supervisors stop disciplining, counseling, and enforcing your policies. But you do have more external factors that come into play when addressing those situations that at any other time would seem relatively routine.
Here's to a return to normalcy. And a vacation.
Wednesday, May 7, 2008
Thursday, April 10, 2008
Remind Me Why We Need Immigration Reform?
Remind me why we need Immigration Reform?
The dysfunctional state of our immigration system was highlighted recently in the mad dash to the post office to file papers with the federal government. No, I am not talking about the annual ritual of filing income-tax returns on April 15; this is a more recent development that now takes place, appropriately, each April 1st.
To understand what takes place each April 1st, you must first understand a little about our immigration system.
Our federal government is properly tasked with the responsibility of maintaining our safety and economic security by controlling the entry of foreign-born persons into the U.S. The mechanism which provides the controlled entry of foreign-born persons is known as a ‘visa’. Although not everyone needs a visa to get into the U.S., (for example, persons from certain European countries wishing simply to visit the U.S. on vacation do not need a visa), if a foreign-born person wants to come to the U.S. temporarily to work, he or she will need a visa.
One of the more common visas for this purpose is known as an ‘H-1B visa’. This type of visa is set aside for persons in ‘specialty’ occupations such as engineers, physicians, software technicians, professors and computer programmers. Typically, such an employee must have at least a Bachelor’s degree to be hired by a U.S. employer.
The question you may ask is ‘do employers really need to bring in someone from outside the U.S. to fill such positions in the company?’
Evidently, the answer is ‘yes’.
Here’s why we know.
Each April 1st, overnight delivery trucks line up along the sidewalk outside the U.S. Citizenship and Immigration Services (“USCIS”) service center in St. Albans, Vermont – each truck filled with petitions for H-1B visas from around the United States. Visualize FedEx and UPS trucks vying for spots closest to the service drop-off in the early morning hours of April Fool’s Day. The situation is so overwhelming that USCIS, a department of the U.S. Department of Homeland Security, has even had to establish guidelines as to what to do with delivery trucks still sitting by the curb at 7:00 p.m. that evening – after the service center is closed. The reason St. Albans, Vermont is so popular this time of year is because it is one of only two service centers in the U.S. that adjudicates H-1B petitions.
There are about 65,000 H-1B visas available each year. There are also an additional 20,000 H-1B visas set aside for prospective employees who have a Master’s Degree or higher-level degree. However, an employer cannot file a petition for an employee’s H-1B visa more than 6 months before the date of hire. Since the allotment of H-1B visas becomes available the first day of each fiscal year, (October 1st), the first day an employer could file an H-1B petition, therefore, is six months before October 1 – which, as you may have guessed by now, is April 1st. Hence, the April Fool’s Day Rush.
But it hasn’t always been that way.
In fact, this is a very recent phenomenon brought about by a steep demand for skilled workers in a marketplace demanding advanced technological expertise and experience – coupled with a recent reduction in H-1B visas.
Around 1998, Congress recognized the increasing demand for the type of skilled workers under the H-1B visa program and increased the number of H-1B visas to 195,000 per year beginning in 2001; but after 2003, the H-1B ‘Cap’ reverted back to 65,000 – where it remains today despite a steep increase in demand for H-1B visas.
U.S. employers’ overwhelming demand for H-1B workers is evident in the filing process. For fiscal year 2007, petitions were filed beginning on April 1, 2006, but the allotment was used up before Memorial Day. The 20,000 additional visas for masters or advanced degrees lasted a few more months thereafter.
For this fiscal year, 2008, the service centers received over 150,000 regular H-1B visa petitions on the first day. Since only 65,000 were available, USCIS crafted an ad hoc lottery to randomly choose which timely-filed H-1B visa petitions it would adjudicate.
So that brings us to this year. Having a full year to consider how to handle the overwhelmed process to give U.S. employers greater access to a competitive global workforce, Congress responded to the problem by … doing nothing. U.S. employers responded by … moving many operations overseas where gambling on the lottery to get a foreign worker was not necessarily a sound business strategy.
It remains to be seen just how many petitions were filed this year. However, at least one accommodation was made: this year’s lottery will include 5 days’ worth of petitions rather than just one. Meanwhile, FedEx and UPS trucks are on their way back from St. Albans, Vermont, and around the country HR managers are sitting at desks with their fingers crossed – hoping that today they might just win the lottery.
The dysfunctional state of our immigration system was highlighted recently in the mad dash to the post office to file papers with the federal government. No, I am not talking about the annual ritual of filing income-tax returns on April 15; this is a more recent development that now takes place, appropriately, each April 1st.
To understand what takes place each April 1st, you must first understand a little about our immigration system.
Our federal government is properly tasked with the responsibility of maintaining our safety and economic security by controlling the entry of foreign-born persons into the U.S. The mechanism which provides the controlled entry of foreign-born persons is known as a ‘visa’. Although not everyone needs a visa to get into the U.S., (for example, persons from certain European countries wishing simply to visit the U.S. on vacation do not need a visa), if a foreign-born person wants to come to the U.S. temporarily to work, he or she will need a visa.
One of the more common visas for this purpose is known as an ‘H-1B visa’. This type of visa is set aside for persons in ‘specialty’ occupations such as engineers, physicians, software technicians, professors and computer programmers. Typically, such an employee must have at least a Bachelor’s degree to be hired by a U.S. employer.
The question you may ask is ‘do employers really need to bring in someone from outside the U.S. to fill such positions in the company?’
Evidently, the answer is ‘yes’.
Here’s why we know.
Each April 1st, overnight delivery trucks line up along the sidewalk outside the U.S. Citizenship and Immigration Services (“USCIS”) service center in St. Albans, Vermont – each truck filled with petitions for H-1B visas from around the United States. Visualize FedEx and UPS trucks vying for spots closest to the service drop-off in the early morning hours of April Fool’s Day. The situation is so overwhelming that USCIS, a department of the U.S. Department of Homeland Security, has even had to establish guidelines as to what to do with delivery trucks still sitting by the curb at 7:00 p.m. that evening – after the service center is closed. The reason St. Albans, Vermont is so popular this time of year is because it is one of only two service centers in the U.S. that adjudicates H-1B petitions.
There are about 65,000 H-1B visas available each year. There are also an additional 20,000 H-1B visas set aside for prospective employees who have a Master’s Degree or higher-level degree. However, an employer cannot file a petition for an employee’s H-1B visa more than 6 months before the date of hire. Since the allotment of H-1B visas becomes available the first day of each fiscal year, (October 1st), the first day an employer could file an H-1B petition, therefore, is six months before October 1 – which, as you may have guessed by now, is April 1st. Hence, the April Fool’s Day Rush.
But it hasn’t always been that way.
In fact, this is a very recent phenomenon brought about by a steep demand for skilled workers in a marketplace demanding advanced technological expertise and experience – coupled with a recent reduction in H-1B visas.
Around 1998, Congress recognized the increasing demand for the type of skilled workers under the H-1B visa program and increased the number of H-1B visas to 195,000 per year beginning in 2001; but after 2003, the H-1B ‘Cap’ reverted back to 65,000 – where it remains today despite a steep increase in demand for H-1B visas.
U.S. employers’ overwhelming demand for H-1B workers is evident in the filing process. For fiscal year 2007, petitions were filed beginning on April 1, 2006, but the allotment was used up before Memorial Day. The 20,000 additional visas for masters or advanced degrees lasted a few more months thereafter.
For this fiscal year, 2008, the service centers received over 150,000 regular H-1B visa petitions on the first day. Since only 65,000 were available, USCIS crafted an ad hoc lottery to randomly choose which timely-filed H-1B visa petitions it would adjudicate.
So that brings us to this year. Having a full year to consider how to handle the overwhelmed process to give U.S. employers greater access to a competitive global workforce, Congress responded to the problem by … doing nothing. U.S. employers responded by … moving many operations overseas where gambling on the lottery to get a foreign worker was not necessarily a sound business strategy.
It remains to be seen just how many petitions were filed this year. However, at least one accommodation was made: this year’s lottery will include 5 days’ worth of petitions rather than just one. Meanwhile, FedEx and UPS trucks are on their way back from St. Albans, Vermont, and around the country HR managers are sitting at desks with their fingers crossed – hoping that today they might just win the lottery.
Tuesday, April 8, 2008
Did you bring your metronome to work?
Keeping with the theme of spring and warmer temperatures. . . .
Workplace appearance. I can sense the uncomfortable shifting in your chair as you read those words. Employers often struggle with enforcement of a workplace dress code because it can develop into such a subjective exercise. We often spend our time talking to our employer clients about being objective in their assessment of employees; the mention of a concept that naturally encompasses subjectiveness well, naturally causes uneasiness.
Do you often find that your workplace appearance policy gets more mileage during the warmer months than the colder months? Certainly it does. And it's not just clothing that has come under scrutiny for employers. Shoes, or lack thereof, have become the bane of many HR manager's existence.
Blame it on Rainbow. Or Sanuk. Or Reef. Or any of the other popular flip-flop labels. Flops are vogue--very hip, very fashionable, and very prevalent. They've gone way beyond the standard black sole with a rubber thong style that many of us used to equate with flops. Now they come in rather dressy (loosely used) styles, and men are just as likely to sport them as women.
If you can get past the tocking sound of the flops, and if you don't work in an area that requires closed-toe shoes, then you may be weighing the implications of giving in to what you see is the inevitable--flops as an acceptable form of "dress" in the workplace. It may be an issue you are forced to address as the flop generation enters the workforce.
At the end of the day, it comes down to (say it with me, please) uniform enforcement of your policies. If you have a policy that doesn't allow for flops, then blow off the dust from that policy and be ready to use it when you hear the employee coming (because you know you will). Otherwise, think of flops as yet more confirmation that warmer temperatures are indeed here (as if the yellow film of pollen on your car didn't already remind you).
Workplace appearance. I can sense the uncomfortable shifting in your chair as you read those words. Employers often struggle with enforcement of a workplace dress code because it can develop into such a subjective exercise. We often spend our time talking to our employer clients about being objective in their assessment of employees; the mention of a concept that naturally encompasses subjectiveness well, naturally causes uneasiness.
Do you often find that your workplace appearance policy gets more mileage during the warmer months than the colder months? Certainly it does. And it's not just clothing that has come under scrutiny for employers. Shoes, or lack thereof, have become the bane of many HR manager's existence.
Blame it on Rainbow. Or Sanuk. Or Reef. Or any of the other popular flip-flop labels. Flops are vogue--very hip, very fashionable, and very prevalent. They've gone way beyond the standard black sole with a rubber thong style that many of us used to equate with flops. Now they come in rather dressy (loosely used) styles, and men are just as likely to sport them as women.
If you can get past the tocking sound of the flops, and if you don't work in an area that requires closed-toe shoes, then you may be weighing the implications of giving in to what you see is the inevitable--flops as an acceptable form of "dress" in the workplace. It may be an issue you are forced to address as the flop generation enters the workforce.
At the end of the day, it comes down to (say it with me, please) uniform enforcement of your policies. If you have a policy that doesn't allow for flops, then blow off the dust from that policy and be ready to use it when you hear the employee coming (because you know you will). Otherwise, think of flops as yet more confirmation that warmer temperatures are indeed here (as if the yellow film of pollen on your car didn't already remind you).
Tuesday, April 1, 2008
Spring is in the air
The give away could have been the warmer temperatures. The buds on the dogwoods. The leaves waving in the breezes. The longer hours of daylight. The allergy-induced sneezes around the office.
The give away could also be, though, the philanthropic opportunities that abound. When the temperatures rise, so do the number of walks and races. Many employees enjoy participating in these events, which can present a problem for employers who have non-solicitation policies. You don't want to quell the well-placed intentions of the employees. Almost everyone can find an organization to support who has one of these physical fundraisers. Yet you also know that some organizations can be more controversial than others. Controversy aside, some employees feel tapped out by the time spring gets here, what with the cookie, popcorn, candy, wrapping paper, pizza kits, stationary, and calendar sales that dominate the fall and winter months.
For some employers, the easy way to address this is to completely bar these events--no posters, no e-mails, no flyers in the kitchen, etc. Others take the approach that only employer-sponsored events can be solicited, and those are usually done indirectly (such as by e-mail or by posting something without any fanfare). Still others have a free-for-all, seeing these activities as a way to build employee friendships and cooperation.
Whatever your approach, as always, ensure that it complies with your non-solicitation policy. If you don't have one of those policies, then take care to see that you have some type of objective criteria (written or no) that provides guidance on when you do allow for solicitation and when it is prohibited.
Happy running/walking! (We have to figure out some way to work off those cookie, popcorn, candy, and pizza pounds, don't we?)
The give away could also be, though, the philanthropic opportunities that abound. When the temperatures rise, so do the number of walks and races. Many employees enjoy participating in these events, which can present a problem for employers who have non-solicitation policies. You don't want to quell the well-placed intentions of the employees. Almost everyone can find an organization to support who has one of these physical fundraisers. Yet you also know that some organizations can be more controversial than others. Controversy aside, some employees feel tapped out by the time spring gets here, what with the cookie, popcorn, candy, wrapping paper, pizza kits, stationary, and calendar sales that dominate the fall and winter months.
For some employers, the easy way to address this is to completely bar these events--no posters, no e-mails, no flyers in the kitchen, etc. Others take the approach that only employer-sponsored events can be solicited, and those are usually done indirectly (such as by e-mail or by posting something without any fanfare). Still others have a free-for-all, seeing these activities as a way to build employee friendships and cooperation.
Whatever your approach, as always, ensure that it complies with your non-solicitation policy. If you don't have one of those policies, then take care to see that you have some type of objective criteria (written or no) that provides guidance on when you do allow for solicitation and when it is prohibited.
Happy running/walking! (We have to figure out some way to work off those cookie, popcorn, candy, and pizza pounds, don't we?)
Thursday, March 20, 2008
Is there a game on today?
March Madness. For many employers, that phrase often carries a double-meaning: the commonly understood reference to the onset of college basketball frenzy during the month, and the feeling that overcomes many employers because they believe they suffer in productivity because the games are a distraction at work.
No doubt, talk around the office often shifts from the latest inventory count to the latest point count; in-bound deliveries to in-bound plays; turn-around margins to turnover margins--you get the idea. How does an employer beat this game? By beating it at its own game, you might say.
A trend is slowly developing in companies to embrace the madness that is March. Some employers host March Madness lunches--where they bring in food for employees, set up TVs in break rooms, and encourage employees to spend a little more time than usual on their breaks and lunch periods to watch the games. Others allow employees to bring in snack foods for all to enjoy, set up in a common area with a television, and let employees stop in as schedules allow. Whatever the approach, employers are beginning to shrug their shoulders and say, "If you can't beat 'em. . . ." http://seattletimes.nwsource.com/html/businesstechnology/2003618663_productivity15.html
The theory is that if you don't deny the employees the ability to indulge in the games, if you openly embrace the games, then employees are less likely to sneak during work time to find out what is happening with the action.
Other companies are allowing their employees to wear clothing items showing off their school spirit on the days when their teams are playing. Employees who don't have teams in the tournament (or remaining in the tournament) are encouraged to fly their school colors nonetheless.
Are there any benefits to employers? Sure--employers find that this time of year provides a perfect setting to do something nice for their workers and show them that they mean more to the company than the number of widgets they can turn out during a shift. In a time when the economy is less than stellar, small efforts to make employees feel important and needed can go a long way toward improving employee morale and retention. And with spring fever often coming into full bloom (no pun intended) at this same time, a little mental break for the employees is often welcome.
So next time you think March Madness is getting the best of you and your company, think about flipping the script. Sometimes it's okay to have fun at work.
No doubt, talk around the office often shifts from the latest inventory count to the latest point count; in-bound deliveries to in-bound plays; turn-around margins to turnover margins--you get the idea. How does an employer beat this game? By beating it at its own game, you might say.
A trend is slowly developing in companies to embrace the madness that is March. Some employers host March Madness lunches--where they bring in food for employees, set up TVs in break rooms, and encourage employees to spend a little more time than usual on their breaks and lunch periods to watch the games. Others allow employees to bring in snack foods for all to enjoy, set up in a common area with a television, and let employees stop in as schedules allow. Whatever the approach, employers are beginning to shrug their shoulders and say, "If you can't beat 'em. . . ." http://seattletimes.nwsource.com/html/businesstechnology/2003618663_productivity15.html
The theory is that if you don't deny the employees the ability to indulge in the games, if you openly embrace the games, then employees are less likely to sneak during work time to find out what is happening with the action.
Other companies are allowing their employees to wear clothing items showing off their school spirit on the days when their teams are playing. Employees who don't have teams in the tournament (or remaining in the tournament) are encouraged to fly their school colors nonetheless.
Are there any benefits to employers? Sure--employers find that this time of year provides a perfect setting to do something nice for their workers and show them that they mean more to the company than the number of widgets they can turn out during a shift. In a time when the economy is less than stellar, small efforts to make employees feel important and needed can go a long way toward improving employee morale and retention. And with spring fever often coming into full bloom (no pun intended) at this same time, a little mental break for the employees is often welcome.
So next time you think March Madness is getting the best of you and your company, think about flipping the script. Sometimes it's okay to have fun at work.
Wednesday, March 12, 2008
DING! DING! DING! And The Nomination Goes To . . .
Well, no one knows just yet. It certainly has been an exciting several months for the campaign trails of many of the candidates. That can lead to exciting discussions in the workplace, too. Co-workers asking who is getting whose vote. Debates about the debates that took place the night before. Discussions on the "true" issues and attempts to peel away "fluff" from candidate speeches. E-mails pinging between mailboxes sharing the latest YouTube clip showing a gaffe by one of the candidates. Sorry--is my political science degree showing? Yes, this is an exciting time for me, I admit it.
For some companies, the campaign season (on whatever level) sometimes leads to heated discussions--many people feel passionately about their political beliefs. It never hurts to have an idea in mind of how much, if at all, you want to foster such discussions. Some companies take a very active approach, viewing these exchanges as a way to build relationships among co-workers. Other companies would rather not have the additional emotion that can accompany an exchange of political views.
Wherever you may fall in that spectrum, take a quick look at your handbook policies (think Ethics, Professionalism, or even Non-Solicitation) to ensure they appropriately address your company's position on the matter. You should also consider talking with some of your managers/supervisors about their roles (big, small or non-existent) in the discussions, too. Remembering that employees can take political discussions very personally, the potential ripple effect when a manager engages with those whom he/she supervises or is viewed to have authority over can turn into a tidal wave rather quickly.
It's campaign season! Happy candidate hunting!
For some companies, the campaign season (on whatever level) sometimes leads to heated discussions--many people feel passionately about their political beliefs. It never hurts to have an idea in mind of how much, if at all, you want to foster such discussions. Some companies take a very active approach, viewing these exchanges as a way to build relationships among co-workers. Other companies would rather not have the additional emotion that can accompany an exchange of political views.
Wherever you may fall in that spectrum, take a quick look at your handbook policies (think Ethics, Professionalism, or even Non-Solicitation) to ensure they appropriately address your company's position on the matter. You should also consider talking with some of your managers/supervisors about their roles (big, small or non-existent) in the discussions, too. Remembering that employees can take political discussions very personally, the potential ripple effect when a manager engages with those whom he/she supervises or is viewed to have authority over can turn into a tidal wave rather quickly.
It's campaign season! Happy candidate hunting!
Thursday, February 28, 2008
Charge It!
That's what the U.S. Supreme Court told the Equal Employment Opportunity Commission (EEOC) in an opinion handed down yesterday, Federal Express Corp. v. Holowecki, et al.
The case addressed 2 questions: (1) What is a charge under the Age Discrimination in Employment Act (ADEA)? (2) Did the former employee file documents with the EEOC sufficient to form a charge of discrimination under the ADEA?
Some brief background: The underlying suit was brought by 14 former employees who worked for FedEx as couriers. They claimed that new policies implemented by FedEx which addressed compensation and performance of couriers were discriminatory against older employees. One employee, Patricia Kennedy, filed an intake questionnaire with the EEOC along with a 6-page affidavit detailing what she alleged were the discriminatory practices. The intake questionnaire was never processed, and FedEx was never told that any type of complaint had been lodged against it.
The ADEA requires an aggrieved employee wait 60 days after filing a charge with the EEOC before filing suit in federal court. (This differs from Title VII, which requires the aggrieved employee to receive a "right to sue" letter from the EEOC before filing a lawsuit.) Kennedy filed her Intake Questionnaire on December 3, 2001 and then filed an EEOC charge form on May 30, 2002. In the interim, though, she joined in a suit filed by other aggrieved employees on April 30, 2002.
The trial court dismissed Kennedy's suit, stating she had not waited 60 days from the filing of her charge before filing suit. The district court did not treat the 12/3/01 Intake Questionnaire as a charge, but instead looked at the 5/30/02 EEOC charge form as the charge.
The appellate court reversed, stating that the 12/3/01 Intake Questionnaire could have been deemed a charge and, therefore, more than 60 days had elapsed between the filing of that and the 4/30/02 lawsuit.
FedEx asked the U.S. Supreme Court to review the dispute, claiming, among other arguments, that it never had an opportunity to address the claims made in the Intake Questionnaire and that the EEOC's failure to property administer the Intake Questionnaire should not act as a penalty against FedEx.
The Supreme Court disagreed, finding that the Intake Questionnaire and accompanying affidavit were sufficient to meet the EEOC's working definition of "charge" under the ADEA. It should be noted that the word "charge" is not defined in either the ADEA or the implementing regulations. The regulations do shed some light on the contents of a charge but fall short of giving a comprehensive definition.
At first glance, this decision may appear to be a huge boost for employees. In practice, though, the decision might not be worthy of the initial groan it has created among employment law defense counsel. First, remember that this case applies only to the ADEA setting, not to Title VII. Most ADEA charges are handled in the normal way--the employee/former employee files a Charge of Discrimination with the EEOC; the EEOC notifies the employer of the charge, the investigation ensues, and eventually a notice of right to sue letter is issued. Although ADEA plaintiffs can file suit after only 60 days has passed from the filing of the charge, most of them wait until the entire EEOC process plays out before turning to the court system.
We will watch what trends develop, if any, from this case and keep you apprised of those.
The case addressed 2 questions: (1) What is a charge under the Age Discrimination in Employment Act (ADEA)? (2) Did the former employee file documents with the EEOC sufficient to form a charge of discrimination under the ADEA?
Some brief background: The underlying suit was brought by 14 former employees who worked for FedEx as couriers. They claimed that new policies implemented by FedEx which addressed compensation and performance of couriers were discriminatory against older employees. One employee, Patricia Kennedy, filed an intake questionnaire with the EEOC along with a 6-page affidavit detailing what she alleged were the discriminatory practices. The intake questionnaire was never processed, and FedEx was never told that any type of complaint had been lodged against it.
The ADEA requires an aggrieved employee wait 60 days after filing a charge with the EEOC before filing suit in federal court. (This differs from Title VII, which requires the aggrieved employee to receive a "right to sue" letter from the EEOC before filing a lawsuit.) Kennedy filed her Intake Questionnaire on December 3, 2001 and then filed an EEOC charge form on May 30, 2002. In the interim, though, she joined in a suit filed by other aggrieved employees on April 30, 2002.
The trial court dismissed Kennedy's suit, stating she had not waited 60 days from the filing of her charge before filing suit. The district court did not treat the 12/3/01 Intake Questionnaire as a charge, but instead looked at the 5/30/02 EEOC charge form as the charge.
The appellate court reversed, stating that the 12/3/01 Intake Questionnaire could have been deemed a charge and, therefore, more than 60 days had elapsed between the filing of that and the 4/30/02 lawsuit.
FedEx asked the U.S. Supreme Court to review the dispute, claiming, among other arguments, that it never had an opportunity to address the claims made in the Intake Questionnaire and that the EEOC's failure to property administer the Intake Questionnaire should not act as a penalty against FedEx.
The Supreme Court disagreed, finding that the Intake Questionnaire and accompanying affidavit were sufficient to meet the EEOC's working definition of "charge" under the ADEA. It should be noted that the word "charge" is not defined in either the ADEA or the implementing regulations. The regulations do shed some light on the contents of a charge but fall short of giving a comprehensive definition.
At first glance, this decision may appear to be a huge boost for employees. In practice, though, the decision might not be worthy of the initial groan it has created among employment law defense counsel. First, remember that this case applies only to the ADEA setting, not to Title VII. Most ADEA charges are handled in the normal way--the employee/former employee files a Charge of Discrimination with the EEOC; the EEOC notifies the employer of the charge, the investigation ensues, and eventually a notice of right to sue letter is issued. Although ADEA plaintiffs can file suit after only 60 days has passed from the filing of the charge, most of them wait until the entire EEOC process plays out before turning to the court system.
We will watch what trends develop, if any, from this case and keep you apprised of those.
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