Thread regarding Intel Corp. layoffs

Understand that Gross v FBL is a Supreme Court case. That means it sets the ultimate legal precedent - followed by ALL U.S. courts. There's no appeal process from there.

To change the legal evidentiary standards set by Gross, the Court would have to overturn themselves. They could only do that if another case with the same basic legal question worked its way through the system and a more liberal Court chose to admit that the Court was previously wrong (Plessy v Ferguson [Separate But Equal] was overturned by Brown v the Board of Education), or essentially overturned the previous precedent by adding a legal distinction.

I just found a very useful article on the website Next Avenue. It's entitled "What It Takes to Win an Age Discrimination Suit," by Penelope Lemov. April 2013 - so it takes the current trend of labor law into consideration.

It includes: "It used to be that if you were terminated to save the firm money and were also older, [there was] an inference of age discrimination. Now, the courts consider what the company is doing a reduction in force - it wants to eliminate the highest paid people. There's no longer a link to age as a clear evidentiary issue." (Makes A Lot Of Money is not, in itself, a protected class.)

It cites Gross v FBL. "Now, plaintiffs must show age discrimination as the MOTIVATING factor. It elevated the level of proof."

The article states that you won't have much of a case if you were part of a mass layoff, "But if you were singled out, or your manager or boss has said disparaging things concerning your age, your prospects for winning are better, especially if you have those remarks in writing."

The author also warns that suing your former employer for age discrimination puts you in danger of being labeled a "high-risk" employee. (Companies don't like to get sued, and what you did to your previous employer you might also do to them.)

"Most people want to get a job and not spend years in deposition." (Never underestimate the irritation and expense of depositions. Or how long it takes to go to trial.) "You may do much better by negotiating with your former employer than taking them to court." And one assumes Intel's generous severance packages are to encourage that thinking.

Again, no, I am not Intel Legal.

Wow, interesting. Would California law hold for Oregon or Arizona cases though?

Taken from The Age Discrimination in Employment Act of 1967:

"It shall be unlawful for an employer-

(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age;..."

Firstly: no, I am not Intel Legal.

Secondly, in Michael J. Marks v. Loral Corp (1997?), the California Supreme Court upheld a lower court ruling that cost-cutting IS a valid reason to fire an older worker in order to replace him/her with a younger, less-expensive worker.

It doesn't appear the SCOTUS reviewed the case - the trail appears to end in California.

Also, in general, as long as the firing criteria appears to be applied universally - if younger workers with the same ratings are also being fired - it's going to be hard to prove that age is a significant factor. (The burden of proof is, indeed, burdensome.) Even if the effects are disproportionate.

Theoretically, the older worker IS more valuable, due to their knowledge and experience.

1sav you seem very knowledgeable about employment law (Intel Legal perhaps ;)?

But you misunderstand what I meant by the article. I'm not saying that the WHOLE ISP action is illegal. What I'm saying that when people are fired and then RCGs are hired for those same SPECIFIC JOBS within 6 months that this could be widespread enough to be an interesting class action lawsuit. And in the case of the specific jobs I think this would be relatively easy to prove - if the proof was there. The thing that makes the case easier is that jobs at Intel are fairly standard which makes it easier to measure the match.

Gross vs. FBL. 2009 SCOTUS. Age discrimination has to be the PRIMARY - and provable - reason for the firing, not just that a disproportionate number of older workers were caught in the layoff net.

This is a mass layoff. They're using criteria that catches a wide range of employee characteristics, not just or even primarily older workers.

I seem to recall that Thomas (writing for the conservative majority) used the "but-for" standard for relief: but for the plaintiff's age, they wouldn't have been laid off. And it doesn't appear Intel has left themselves open to that. (But this IS why, before Scalia's death, this was called a "business-friendly Court.")

the "performance" aspect is what is keeping this legal for Intel, because if an ee is termed due to performance, they can backfill - this is different from eliminating a "job", in which case Intel would need to prove the RCG or New Hire is filling a new position, not backfilling someone who left the company. That's why ISP can be validated as "performance", and VSP can be validated as "attrition"...sadly for the impacted ees, neither of those situations are illegal. I highly recommend all the people wanting to sue simply file a complaint with the EEOC instead, this way there will be a tracking mechanism for how many similar cases there are, which may trigger the EEOC to lump together and investigate further as one action.

I'm not so sure that "nobody has sued yet". The game in lawsuits is to keep it out of the press/courts. Negotiated settlement. I would not be surprised if there were many negotiated settlements in 2015 where both parties had lawyers and it would have gone to court if payment had not been made. We will never know for sure... but if I was running Intel I would pay before letting anything go to court and encourage even more suits. Something to consider?

@Hka7Tiv-fxn, after 2015 ISP we were thinking someone will sue but here we are half way in 2016 and nobody has sued yet. Remember one of Intel board member has the biggest law firm so its all figured out. Lets see who can pull this off. There is a lot of data that point age is being discriminated like there is no tomorrow and nobody can touch Intel. So much for age discrimination in US.

Personally I'm at a stage in my life where I'd like to sue, but need to focus on providing for the family. However due to the high number of people fired (ISP) in their later years right before retirement for no apparent reason... and then their old job opens back up with an RCG backfill - I'm sure there will be a few folks happy to take on the challenge of an Intel lawsuit!

You get nothing. Now move along. Nothing to see here.

Maybe you didn't read the article. Let me help point out the relevant part: "Your former employees may have grounds to file a claim against you if, for example, you laid off someone over the age 40 and two months later replace her with someone younger than 40".

This is the Intel MO. Fire older workers and then replace them with RCGs in low cost geos.

No case. No hope. No dice.

Seems like common sense to me! Clearly discrimination, add to that other violations. Document everything!