Legal – Page 12 – Workforce

February 26, 2020July 24, 2024

Immigration update: Employers must use a new I-9 form for 2020

The federal government recently released an updated Form I-9, and although employers aren’t required to use the new version until May 1, 2020, best practices dictate that they should start using it immediately. The Form I-9 verifies the identity of new hires and ensures they are authorized to work in the United States, and it is the first update from the United States Citizenship and Immigration Services in a few years.

With this recent announcement, employers should take immediate steps to ensure compliance with the new form — or risk financial penalties.

Minor, but important changes

There has only been a subtle change to the form itself. Specifically, USCIS revised the Country of Issuance field in Section 1 and the Issuing Authority field (when selecting a foreign passport) in Section 2 to add Eswatini and Macedonia, North, because those countries recently announced name changes.

This change is visible only when completing the fillable Form I-9 on a computer. The paper version of the new I-9 will look identical to the current version dated July 17, 2017.

However, changes to the form’s instructions are more substantive:

Updated website addresses and other contact information: The instructions no longer contain contact information for the Immigrant and Employee Rights Section of the Department of Justice.
Clarification as to who can act as an authorized representative on behalf of an employer: The instructions make clear that employers can designate “any person” to complete and sign Section 2 of the I-9 on the employer’s behalf. The instructions also make clear that the employer, not the authorized representative, is liable for any violations committed in connection with the I-9. The lesson here is that while you may choose anyone to serve as an authorized representative, choose carefully and make sure they understand how to correctly fill out Section 2.
Instruction that employers who enter information in Section 2, List A should not enter N/A in Lists B and C (and vice versa).
Updates on the process for requesting paper Form I-9s (as an alternative to printing them from the USCIS website) and an updated Department of Homeland Security Privacy Notice.

Begin using new form immediately

Although employers can continue using the previous Form I-9 through April 30, 2020, it makes sense to scrap the use of the July 17, 2017 version and begin using the updated version right away. Employers should recycle all older blank versions they already have printed and instruct their hiring managers and human resources representatives to download the new Form I-9 for use with new hires going forward.

On May 1, 2020, all employers will be required to use the revised form, so they should avoid any delay and begin using the new version immediately. It’s important to remember, however, that they should not require current employees to fill out the new I-9 form. Rather, they should use the new Form I-9 only for new hires moving forward.

Also read: 3 ways HR leaders can stay ahead of changing immigration policies

Non-compliance can be costly

Although the changes to the Form I-9 and its instructions are slight, failure to use the new form and comply by the May 1 deadline can result in large fines. I-9 audits have increased threefold in recent years (from 1,360 to 5,981 per year), while worksite investigations have increased even more dramatically (from 1,691 to 6,848 per year).

Potential fines are also increasing — paperwork violation fines can now range between $230 to $2,292 per employee. Civil penalties for knowingly hiring or employing unauthorized workers currently range from $573 to $4,586 per employee for the first violation. Second- and third-violation civil penalties can range between $4,586 up to $22,972 per employee. Arrests and criminal convictions for knowingly hiring or employing unauthorized workers are on the rise as well.

Conclusion

It is unlikely that the Trump administration will slow down DHS’s employer-driven immigration compliance mechanisms. Based upon recent actions from the administration to increase enforcement and hire more ICE agents, along with statistics demonstrating significant increases in I-9 audits and worksite investigations, it is increasingly likely you could face enforcement actions in the form of ICE audits, workplace raids and employee detention. Accordingly, now is the time to review your I-9s and your compliance policies to minimize exposure should the government show up on your doorstep demanding to see your I-9s.

Also read: Do you know what to do if ICE shows up at your business?

February 24, 2020June 29, 2023

The 4th nominee for the Worst Employer of 2020 is … the Perverted Peking-duck Purveyor

sexual harassment prevention requirements

Every year I worry about how I’m going to fill my annual list of worst employers. I’ve yet to be disappointed.

The EEOC recently filed suit against a Medford, Oregon, Chinese restaurant after its middle-aged night-shift manager repeatedly sexually harassed young female employees.

The allegations are horrific. The manager is accused of the following.

Repeatedly making sexual comments, sexual innuendos, and remarks to female employees.
Repeatedly touching female employees’ backs, shoulders, waist, hip/crotch area, buttocks, rubbing his body up against female employees’ bodies, and standing close behind female employees and staring at them.
Repeatedly touching the breasts of female employees including putting his hand under a female employee’s shirt and bra.
Pulling on the shirt and bra of a female employee to expose her nipple.
Asking a 15-year-old female employee to send him naked photos of herself.

Yet, those allegations, as awful as they are, aren’t what earned this employer its nomination. It’s what happened after the victims complained that placed this employer on this year’s list.

According to the EEOC—

Even after the manager … was arrested at work and booked for sexual abuse of the restaurant’s minor employee, he was permitted to return to work.… Despite repeated employee complaints and the manager’s guilty plea to misdemeanor harassment, the restaurant failed to stop his behavior or discharge him. Instead, New China fired one female employee soon after she reported his inappropriate conduct and another female employee felt she had no choice but to resign.

If you enable your 50-something manager to sexually harass your teenage workforce, even after employees complain and he’s arrested for and convicted of harassment, you might be the worst employer of 2020.

Previous nominees:

The 1st Nominee for the Worst Employer of 2020 Is … the Repeat, Repeat Offender

The 2nd nominee for Worst Employer of 2020 is … the Uncaring Chief

The 3rd nominee for the Worst Employer of 2020 is … the Arresting Retaliator

February 18, 2020June 29, 2023

Court concludes employer should have advised injured employee of FMLA rights even after going AWOL

Buddy Phillips injured his ribs while playing with his grandchildren.

Over the next two weeks, he called his employer, United Trailers, to report he would miss work. Eventually, however, he stopped making these phone calls. When he failed to show up at work for three straight days without giving notice, United fired him under its attendance and reporting-off policy.

He sued, claiming that United interfered with his rights under the FMLA by failing to advise him of his rights under the statute after it had notice of his serious health condition but before he went AWOL.

In Phillips v. United Trailers, the 7th Circuit Court of Appeals held that in this instance, the employee’s FMLA rights trumped the employer’s attendance and reporting policy.

Even if Phillips failed to comply with the FMLA by failing to report his absences, he did so after United would have violated the FMLA. Phillips stopped calling in to work at least nine business days after he first reported his rib injury to United. Under the regulations, United had five business days after receiving notice of Phillips’s rib injury to determine whether he qualified for FMLA leave.

In other words, an employer cannot rely on its attendance and reporting-off policy to terminate an AWOL employee if the employer is already on notice that an FMLA-qualifying event might be the cause of the employee’s unreported absences.

So what should an employer do in this situation, when an employee might have triggered the FMLA’s protections? The FMLA’s regulations offer some guidance.

1. If the need for leave is foreseeable to the employee, it’s a much easier issue. The employee must give 30 days notice, which gives the employer and the employee more than enough time to work out their leave and attendance issues.
2. If the need for leave is unforeseeable, however, the employee must provide notice of his intent to take leave to the employer as soon as practical under the circumstances. That notice must “provide sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request.” Critically, an employee “need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed.”
3. The burden then shifts to the employer. The employer must decide whether to designate the request for leave as FMLA-qualifying. Its decision to designate FMLA leave “must be based only on information received from the employee.” If the employer lacks information about the reason for an employee’s request for leave, the employer should inquire further of the employee to determine whether leave is potentially FMLA-qualifying. The employer should not, however, bury its head in the sand and ignore the employee, because if the leave turns out to be FMLA-covered, the employer will have a big legal problem. Just ask United Trailers.
4. Importantly, the employer only has five business days to notify the employee whether leave will be designated as FMLA-qualifying, absent extenuating circumstances.
5. Throughout this back-and-forth time period, the employee must comply with the employer’s “usual and customary notice and procedural requirements for requesting leave.” If the employee does not comply with the employer’s usual leave-request requirements, the employer is within its rights to deny or delay the FMLA leave. If, however, the employee provides notice and complies with the employer’s attendance policy, the employer’s failure to timely determine whether the employee’s leave counts as FMLA-qualifying may constitute an interference with the employee’s FMLA rights.

These are complicated issues that often do not have cut-and-dried answers and can carry seriously expensive consequences for an employer’s missteps. If an employee presents you with an injury- or illness-related absence that may or may not qualify for FMLA protections, your first call should be to your employment lawyer to make sure that you are handling this issue correctly under the FMLA’s maze of rules and regulations.

February 13, 2020June 29, 2023

The 3rd nominee for the Worst Employer of 2020 is … the Arresting Retaliator

An African-American employee claims he suffered rampant discrimination at the towing company at which he worked, including being called racial slurs.

But that’s not what qualifies A&B Towing for its nomination as the Worst Employer of 2020. It’s what happened to Michael Fesser after he complained to his boss about the discrimination and harassment that is truly eye-opening and offensive. NBC News has the details:

West Linn police began investigating Fesser in February 2017 after Fesser raised concerns to his boss, Eric Benson, owner of A&B Towing, that he was being racially discriminated against at work. …

After he raised his concerns, Benson contacted West Linn Police Chief Terry Timeus, his friend, and persuaded to look into allegations that Fesser had stolen from the company, according to the lawsuit.

The suit said the theft allegations were false and unsubstantiated.

But with the approval of West Linn police Lt. Mike Stradley, Detectives Tony Reeves and Mike Boyd used audio and video equipment to watch Fesser while he was at work, according to the suit. The surveillance was “conducted without a warrant or probable cause” and did not result in any evidence that Fesser was stealing from his employer, the lawsuit stated.

Regardless, West Linn officers, with the help of Portland police officers, arrested Fesser days later based on Reeves’ and Stradley’s “false representations” to Portland police that they had probable cause for an arrest. …

Fesser spent about eight hours at the police station before he was released on his own recognizance. He was later contacted by West Linn police to come to the station to retrieve some of his belongings. While he was there, officers informed Fesser that he had been fired from his job, according to the lawsuit. …

According to the lawsuit, criminal charges in the arrest weren’t filed until after Fesser sued his employer over his termination and for discrimination. The charges were later dismissed.

If you call in a friendly favor to the chief of police to have an employee falsely arrested after that employee complains of workplace discrimination and harassment, you might be the worst employer of 2020.

Previous nominees:

The 1st Nominee for the Worst Employer of 2020 Is … the Repeat, Repeat Offender

The 2nd nominee for Worst Employer of 2020 is … the Uncaring Chief

February 12, 2020June 29, 2023

Even though this employer won its ex-employee’s retaliation lawsuit, don’t do what it did

Family businesses are difficult to manage. They become even more difficult when the owners are spouses, and an employee accuses one of sexual harassment.

For example, consider Allen v. Ambu-Stat.

D’Marius Allen worked as an EMT for Ambu-Stat, owned by husband and wife Santos and Rita Ortiz. During the four months Allen worked for Ambu-Stat, she claimed that Santos subjected her to sporadic instances of verbal sexual harassment. For example, he told her she was “pretty” and “fine as hell.” She also alleged he made three sexually suggestive comments to her.

Three months into Allen’s employment, Rita called her into her office and accused her of discussing her sex life with Santos. Allen demurred that Santos started any sexual conversations between them. Rita ended that meeting by warning Allen that it was inappropriate to discuss her personal life with Santos, as he was her employer. One week later, Rita delivered a disciplinary employee correction form to Allen for having had an “inappropriate conversation” with Santos while on duty. The form stated that “having such conversations while on duty with co-workers (or especially with my husband) is extremely inappropriate and unacceptable.”

Allen responded by explaining to Rita, in writing, that Santos had asked her if her boyfriend was good at oral sex, in response to a lyric in a song on the radio. Allen also wrote that she did want to be “involved in any sexual harassment.” Finding Allen’s explanation to be “outlandish,” “disturbing,” and “full of lies,” Rita terminated her.

The 11th Circuit Court of Appeals affirmed the district court’s dismissal of Allen’s retaliation claim. The court differentiated between bona fide opposition to unlawful discrimination or harassment (protected), as compared to an attempt to apologize and mend fences (not protected). The court concluded that Allen had engaged in the latter. Case dismissed. Employer wins.

This decision is baffling. Allen was in an extraordinarily difficult situation, harassed by one owner-spouse and having to justify her action to the other owner-spouse. She should not have to use “magic words” to express her discomfort in the situation. (Never mind that she actually did use the magic word “harassment”.)

An employer has the same anti-harassment and anti-retaliation obligations to an employee whether the accused harasser is a line worker or an owner. Take the allegations seriously, investigate, correct and do not retaliate. Ambu-Stat failed on each of these steps and is very lucky to have walked out of this case free and clear.

February 11, 2020June 29, 2023

CBD: What employers need to know

Employers don’t have to be operating in states where marijuana is now legal to be impacted by its changing status. Cannabidiol, a compound derived from the cannabis plant, is already available legally in every U.S. state. CBD oil and products containing CBD are impacting workplace drug policies in ways that are still unclear.

Confirm BioSciences, a national provider of drug testing supplies and laboratory services, has issued a report on the effect of CBD. As the medical review officer of the organization, here I answer the most common questions employers ask about this increasingly popular substance.

Q: What exactly is CBD?

A: CBD, the shortened name for cannabidiol, is an extract from cannabis, the plant that produces marijuana. It can also be obtained from the hemp plant, another form of cannabis that has extremely low levels of THC, the substance that instills a high. Hemp became legal to grow commercially in every U.S. state in 2018.

Also read: Opening up the workplace medicine cabinet

Q: What are the legitimate uses for CBD? Are there any uses that can be prescribed by a physician?

A: From a scientific perspective, the only medical condition for which CBD has been approved is a certain type of seizure disorder. The medication is called Epidiolex, and it was approved in 2018. As far as other conditions for which medical providers may recommend CBD oil, the problem is that there have been a very limited number of medical studies, with conflicting results. We’re simply not there yet in terms of scientific support.

Q: Will using CBD compromise employee performance in any way?

A; To answer this, we run into the question of whether the CBD is 100 percent pure, which is defined as containing less than 0.3 percent THC. If a product contains pure CBD, there should not be any employee performance issues. The challenge is that the vast majority of CBD products are not pure. Up to 70 percent of CBD products are mislabeled. According to a recent Journal of the American Medical Association study in which 84 different CBD products were analyzed, THC was present in 18 of the products in varying amounts.

Q: Are there any circumstances or occupations in which CBD should never be used by employees?

A: If the product used by the employee meets CBD purity standards, there should be no physical or mental impairment. The real issue is purity.

Q: How long will CBD stay in a person’s system?

A: It depends on the individual. For some, CBD oil will remain in the system for two to five days. For others it can take weeks to resolve. The typical time is around one to two weeks.

Q: If CBD is legal, why are workers using CBD-infused products failing drug tests?

A; The challenge with CBD in the workplace is that, either knowingly or unknowingly, people are using CBD tainted with THC. So people might be buying a product with CBD to help them sleep, and if that product also contains THC, it may be the THC that is impacting their sleep instead of the CBD.

Also read: Managing people in the growing cannabis industry

Q: What can be done to ensure that CBD-infused products are pure and don’t contain THC?

A: Currently no governing or regulatory body is tasked with ensuring the purity of CBD. The oversight just isn’t there to ensure that when people are buying a CBD product, they are getting pure CBD oil. For workers and employers to be adequately protected, this situation has to change.

Q: If an employee using a CBD, or a CBD-infused product, fails a drug test, what then? Whose responsibility is it to determine if the employee hasn’t violated workplace policies?

A: It’s not the employer’s responsibility to ensure that drugs do not show up on an employee’s drug screen. The employer’s role is simply to make sure that the chain of custody is intact. If the individual has signed documentation confirming that the sample provided is theirs and the sample was sealed in their presence, the employer should not be held liable.

There is another issue, however, due to the changing legality at the state level for recreational and medicinal marijuana. In states where marijuana is legal, a company may still be able to have a zero-tolerance policy (please refer to your state’s specific law regarding recreational and/or medical marijuana use). And for companies subject to federal standards, marijuana is still a Schedule 1 drug under the U.S. Controlled Substances Act. It’s in those states in which marijuana has been legalized recreationally that a many employers look for guidance.

Q: What steps should employers be taking in regard to CBD?

A: For employers with a stated drug policy, it makes sense to educate their workers about the risks inherent in CBD oil. If they don’t feel comfortable providing that information firsthand, they should partner with a qualified third party who can provide it. The employer should never put itself in the position of contradicting an employee’s physician. That way if an employee is considering using a CBD product, they can discuss their employer’s drug testing program with their doctor.

Q: Should employers be concerned about the proliferation of CBD as a legal substance?

A: It would be wise for employers to educate their workers about CBD. The ultimate responsibility, however, lies with the employee. It’s up to every individual to know exactly what they’re putting in their body and what may happen as a result.

February 4, 2020June 29, 2023

Court to decide whether an employer can require direct observation of a workplace urine-sample collection

An employer requires “direct observation” of its employees providing a urine sample pursuant to its reasonable suspicion and random workplace drug-testing policy.

The employer sends an individual of the same sex to accompany the tested employee into a restroom designated for the sample collection to visually observe the employee producing the sample. The employer’s substance abuse policy and the consent and release form provide for the testing, neither discloses or provides for the direct observation of the sample production.

These are the facts of Lunsford v. Sterilite of Ohio, in which the Ohio Supreme Court will decide whether a private-sector, at-will employee who agrees to drug testing as a condition of continued employment has a reasonable expectation of privacy during mandatory drug screening.

The court of appeals determined that the direct observation method of urine-sample collection is an unlawful invasion of the employees’ common law right to privacy. “We find appellants did have a reasonable expectation of privacy with regard to exposure of their genitals.” The issue wasn’t whether the collection itself violated the employees’ privacy. It doesn’t. As the appellate court explained, “[A]n employee consenting to a drug test waives the right to complain that his urine is collected and tested.” However, in this case, the employees “had an expectation of privacy with regard to their bodies and … the compelled exposure of their genitals and compelled urination before a stranger intruded upon that privacy.”

The Ohio Supreme Court, which held oral argument in this case last week, will now decide this fascinating issue.

If you watch the oral argument, you will not witness a whole lot of outrage toward the employer from my state’s notoriously business-friendly Supreme Court. While this case will likely be a win for the employer, it does not mean that your business should across-the-board adopt “direct observation” as the process for your drug testing. To me, it’s a horribly offensive practice that should only be used if necessary, and only after disclosure to, and consent by, the observed employee.

What advice would I provide if a client comes to me and asks about a “direct observation” policy?

I’d ask, “Why?” What are you trying to achieve? Are there less obtrusive means available to prevent employees from cheating a drug test (e.g., searches before they enter the restroom, pat-downs, etc.)? Does it make more sense to limit direct observation to situations in which you have a reasonable suspicion of cheating?
Make sure all employees have notice of the direct observation and when you might use it. Unlike the employer in this case, put it in your drug-testing policy, and have employees sign off on it as an express condition of employment. With notice and consent, they cannot complain about an invasion of privacy, as they’ve voluntarily sacrificed that right.

Just because Ohio’s Supreme Court will likely grant a thumbs-up to Sterilite’s policy in this case, it does not mean that the policy makes for good HR or that it’s one that you should adopt in your workplace. Instead, consider what goals you hope to advance with your drug-testing policy and tailor it accordingly.

January 30, 2020June 29, 2023

Does Title VII protect veganism as a religion?

A judge in the United Kingdom has ruled that “ethical veganism” is a protected class akin to religion and is protected from workplace discrimination. The Washington Post shares the details:

An employment tribunal made that landmark determination in a case involving a man who claimed he was fired from his job at an animal rights organization for revealing to colleagues that their pension funds were invested in companies that experiment on animals. The tribunal has yet to rule on the merits of the case, but it did on Friday take the step of deciding that the man’s ethical veganism constitutes a “philosophical and religious belief” protected by anti-discrimination law.

That’s the United Kingdom. What about the United States? Well, it depends.

There are two leading cases on this issue.

In Chenzira v. Cincinnati Children’s Hosp. Med. Ctr. (S.D. Ohio 2012), the federal court denied the hospital’s motion to dismiss the employee’s religious discrimination claim. The core issue the court decided is whether veganism is a sincerely held religious belief, or merely a moral or secular philosophy or lifestyle (as the hospital argued). In support of her argument, Chenzira—a customer service representative who refused a flu vaccine because it contained animal by-products—cited an essay, The Biblical Basis of Veganism. She also cited bible verse to her employer when she made her request for a religious accommodation. In denying the motion to dismiss, the court stated:

The Court finds that in the context of a motion to dismiss, it merely needs to determine whether Plaintiff has alleged a plausible claim. The Court finds it plausible that Plaintiff could subscribe to veganism with a sincerity equating that of traditional religious views.

Contrarily, in Friedman v. Southern California Permanente Medical Group (Cal. Ct. App. 2002), the state appellate court dismissed the religious discrimination claims of a vegan IT worker who refused a mumps vaccine for similar reasons as Chenzira. He claimed the vaccine “would violate his system of beliefs and would be considered immoral by him,” which resulted in the withdrawal of his employment offer. The court concluded that veganism is not a protected religion:

We do not question plaintiff’s allegation that his beliefs are sincerely held; it is presumed as a matter of law that they are.… There is no allegation or judicially noticeable evidence plaintiffs belief system addresses fundamental or ultimate questions. There is no claim that veganism speaks to: the meaning of human existence; the purpose of life; theories of humankind’s nature or its place in the universe; matters of human life and death; or the exercise of faith. There is no apparent spiritual or otherworldly component to plaintiffs beliefs. Rather, plaintiff alleges a moral and ethical creed limited to the single subject of highly valuing animal life and ordering one’s life based on that perspective. While veganism compels plaintiff to live in accord with strict dictates of behavior, it reflects a moral and secular, rather than religious, philosophy.

In other words, while his beliefs are sincerely held, they are moral beliefs, and therefore secular and not religious.

To answer my question on how U.S. courts would view this issue, it depends on the jurisdiction in which your business is located, and perhaps whether the employee’s beliefs are grounded in spiritualism or personal morals.

These cases also raise a more fundamental question — how far should businesses go to accommodate employees’ requests for special treatment. To me, sometimes, the path of least resistance makes the most sense.

For a hospital, there may not be a path of least resistance when comes to public health issues such as vaccinations. Other businesses, however, have to balance the burden of granting the accommodation versus the risk of a lawsuit (and the costs that go with it). In many cases, the accommodation should win out, because it is easier and less costly than denying the request and eating a lawsuit, even if it’s a defensible lawsuit.

For example, if you face this same vaccination issue at your widget company, is there a harm in letting employees opt out on religious ground, even if it’s a borderline (at best) religion, like veganism. You can defend your decision to deny the request based on the bona fides of the claimed religion. But, where does that get you? Are you on right side of the law? Possibly. Have you irreparably damaged your relationship with your employee, while at the same time demonstrating to your entire workforce that you practice policies of exclusion instead of inclusion? Likely.

In other words, there are more factors to consider other than answering the question, “What does the law say about this?” How you incorporate those other factors into your accommodation decision-making is often more important than simply answering the underlying legal question.

January 22, 2020January 22, 2020

Washington state joins noncompete law parade

Washington state employers now must comply with one of the strictest noncompete laws in the country, which the Legislature determined will apply retroactively to restrictive covenants entered into before Jan. 1, 2020.

Washington House Bill 1450 declares that noncompetes are unenforceable against employees who make less than $100,000 a year (and in the case of independent contractors, $250,000 a year). The law also requires significant disclosures to be made to the employee at the time they sign the noncompete — the absence of which could also invalidate the clause.

The law requires compensation to be paid to the employee during the period that it will be enforced at a rate not less than the employee’s previous salary, minus any compensation earned through subsequent employment during the period of enforcement.

Further, noncompetes lasting longer than 18 months are presumptively void. Under the law, any attempt by an employer to noncompetes against Washington employees or independent contractors in another state (i.e., through a forum clause) will render the covenant unenforceable.

Finally, the law states that in the case of a noncompete being declared unenforceable or enforceable in part or as modified, the party seeking enforcement must pay the aggrieved person the greater of actual damages suffered or a $5,000 penalty, plus reasonable attorney’s fees and costs.

IMPACT: Employers should be aware of any state restrictive covenant laws that may impact portions of the workforce.

January 21, 2020June 29, 2023

You Can’t Prove Age Discrimination if You’re Replaced By Someone Older

Crescent Metal Products in Ohio fired Donald Tschappatt for a variety of instances of poor work performance.

He made “negative comments” about co-workers. He stood around doing nothing and disappeared from his work area. He took extended bathroom breaks. And he made various assembly and packing errors.

After the company fired the 55-year-old Tschappatt, he sued for age discrimination.

The problem with Tschappatt’s claim? Crescent Metal Products replaced him with someone 6 years older. That’s not a great fact for an employee claiming age discrimination.

As the court explained:

Tschappatt fails … to show that he was replaced by someone younger. All of the competent and relevant evidence indicates that the company replaced him with Bob Hunter, who was 61.… Crescent put in plenty of evidence that Bob Hunter, age 61, replaced Tschappatt. Crescent reassigned Hunter to Tschappatt’s position, and Hunter has been “able to successfully reach the same production goals” and “perform all of the duties” of the position “without incident.”

The law protects older workers from discrimination favoring younger workers. An employee cannot establish this if replaced by someone older. Case closed.