March 27, 2019

IBM systematically targeted older workers for layoffs and hid legally required information from them that could have helped them figure out whether age discrimination was afoot, four former workers alleged Wednesday.

The four named plaintiffs, who were each let go in 2016, accused IBM Corp. in a New York federal court suit and an accompanying arbitration demand of violating the Older Workers Benefit Protection Act, a 1990 update to the Age Discrimination in Employment Act. The company allegedly put a policy in place that sought to push out older workers to make room for younger hires while covering its tracks by not giving laid-off workers key data mandated by the OWBPA that could've helped them assess if the group was discriminated against based on their age.

More specifically, the laid-off workers claimed that IBM didn’t give them so-called comparator information when IBM offered them severance packages in exchange for a waiver of their right to pursue age bias claims collectively. Disclosure of that data — which includes information about how workers were chosen for layoffs as well as the ages and job titles both of people in a division who were ousted and those who were retained — is a prerequisite under the OWBPA for a waiver to be valid.

Although IBM had previously given laid-off workers comparator information, it stopped doing so in 2014, around the same time that the company purportedly began considering workers’ age as a greater factor in its layoff decisions, plaintiffs’ counsel Joseph Sellers of Cohen Milstein Sellers & Toll PLLC told Law360 Wednesday.

“At bottom, what we’re doing here is challenging this tech company’s reliance on age stereotyping to remove a whole generation of tech-savvy workers,” Sellers said. “What does make this somewhat unusual is that it appears to us that they deliberately engaged in a practice of concealing the comparative information that normally the OWBPA requires employers to disclose when they are engaging in a group layoff as [IBM has] done repeatedly since 2014.”

“The evidence seems to suggest that the point at which they stopped providing this comparative information was around the same time that age became a significant factor in the choice of who to lay off,” he added. “And it certainly appears to be an effort to conceal that information from the people who are being adversely affected by the layoff. This was not a mistake, in other words.”

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Alongside their federal court suit, the workers also filed an arbitration demand, noting that their separation agreement with IBM included an arbitration provision. The federal court suit is intended to challenge the validity of the collective action waiver obtained by IBM, while the arbitration demand seeks to address the merits of the workers’ age bias claims.

Sellers noted on Wednesday that the plaintiffs aren’t seeking to avoid arbitration and filed suit merely to affirm their right to pursue their claims as a collective.

“We’re willing to go to arbitration. What we’re not willing to do is give up our clients’ right to pursue their claims collectively,” Sellers said.

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The plaintiffs are represented by Joseph M. Sellers, Michael Eisenkraft and Shaylyn Cochran of Cohen Milstein Sellers & Toll PLLC, Jeffrey Neil Young, David G. Webbert, Carol J. Garvan,  Max I. Brooks, Shelby H. Leighton of Johnson Webbert & Young LLP.

The complete article can be accessed here.