Posts tagged Dale Kleber.

Another chapter in a continuing saga.

An important victory for age plaintiffs.

(Not an actual letter from Mr. Kleber.

(Not an actual letter from Mr. Kleber.)

Last week, I received a scathing comment from Dale Kleber, a Chicago-area lawyer and a plaintiff in an age discrimination lawsuit. Mr. Kleber did not like my gut reaction to his lawsuit, which was based on an article that I’d read in The Washington Post. It appeared to me that Mr. Kleber — then a 58-year-old lawyer with roughly 30 years of experience, including experience as a CEO of a dairy industry trade group, Chief Legal Counsel, and General Counsel — was rejected for a low-level in-house staff attorney position because he was overqualified for the position, not because he was 58 years old.

Prompted by Mr. Kleber’s comment, I have now read the court papers (well, a lot of them, anyway).*

*Mr. Kleber’s case is currently on appeal to the U.S. Court of Appeals for the Seventh Circuit, but it is still in the very early stages. For you procedural nerds, I’ve included a summary at the end of this post. Non-nerds can skip it.

Now that I know more about Mr. Kleber’s lawsuit, I haven’t changed my mind. In other words, I still think he was rejected for being overqualified.

Can’t “overqualified” be a code word for “too old”? Yes, but not necessarily. Read on!

At a client seminar that my office presented during the very contentious 2016 campaign season, my law partner John Doyle delivered an introductory disclaimer. Although I may not have his words verbatim, I will never forget the message, which was as follows:

The only thing we’re partisan about is employers. That’s it.

It was a great way to dispel the perception that we were being politically partisan while we had to discuss the positive and negative impacts of the candidates’ proposals on employment law issues.

This morning, I got a comment from the plaintiff in an age discrimination lawsuit that I referenced last year, based on an article that had appeared in The Washington Post. Here’s what the plaintiff, Dale Kleber, said to me:

Well, Robin, I was surprised that although you have formal legal training, the article you wrote contains so many factual assumptions that simply are false. I suspect that your firm primarily represents defendant employers and your “analysis” is tainted with the bias of economic self-interest. In the near future, I expect to obtain an objective review of my case from the the Seventh Circuit. Your article, devoid as it is of even the most basic factual or legal analysis is simply an editorial masquerading as a legal newsletter. But perhaps that is what your clients want to hear.

I admit I did not think Mr. Kleber was a victim of age discrimination based on the information in the WaPo article, and I admit that I said so. Reading between the lines on his comment, it appeared to me that he had lost his case (since he was hoping to be vindicated on appeal), but I read the court filings today and it’s more complicated than that. (I’ll have a separate blog post about the merits of Mr. Kleber’s lawsuit, which I think is pretty interesting.)

As far as writing “editorials” on this blog, I plead guilty. This ain’t, after all, The New York Times.

I also admit that I and my firm represent employers, and that we are always on the employers’ side.

But what I’d really like to talk about is what it means to be “on the employers’ side,” or, as John says, “partisan” on behalf of employers.

What a week for aging. According to one study, people age 65 and older will outnumber people age 15 and younger worldwide by the year 2030. This is referred to as a "population plague."

Elderly Crossing.flickrCC.EthanPrater
"Who you callin' a plague?"

In more bad news for younger older people, Lydia DePillis, writing for The Washington Post, had an article titled "Baby boomers are taking on ageism -- and losing." From ...

By David Phippen of our Metro D.C. Office.

While the year is still young, here are 15 New Year's resolutions that employers may want to make:

1. Make sure your "independent contractors" are really independent contractors. "Independent contractors" are under scrutiny by the Internal Revenue Service, the U.S. Department of Labor, the National Labor Relations Board, state and local agencies, plaintiffs' lawyers, and union organizers. A misclassification can cost you back taxes, back pay (including overtime), and back benefits, as well as penalties and interest. 

2. Review your email policies. The NLRB recently found that employees generally have a right to use employer email systems during non-working time in support of union organizing and concerted activity. The Board's decision means that many employer email use policies, as currently drafted, would probably be found to violate the National Labor Relations Act if an unfair labor practice charge were filed or a union tried to organize employees and argued that the employer's email policy interfered with the organizing efforts. In light of the new "quickie election" rule that the NLRB issued last month, both union and non-union employers would be well advised to review their email policies and revise as needed. (The "quickie election" rule is scheduled to take effect on April 14, but the U.S. Chamber of Commerce and other employer groups, including the Society for Human Resources Management, filed suit on Monday seeking to block the rule.)

It's not too late to register for our webinar on the NLRB's new rules on "quickie elections" and employee email use. The webinar, featuring labor attorneys Tim Davis, Jonathan Martin, and Dan Murphy, is from noon to 1 p.m. Eastern tomorrow (January 8). Be there, or be square! 

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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