Coles Corner Winning Wine: March 2010 (Archive)

EOS Estate Winery 2005 Cupa Grandis Petite Sirah - If you are a fan of dark fruit and smooth finishes, the 2005 Cupa Grandis will deliver that and more. As a Petite Sirah, this wine provides an unadulterated version aged in French oak. The rich, deep color hints at the complexity of the wine and we enjoyed the multi-layered and structured approach from EOS Estate Winery.

Age Discrimination Claims Increasing...But Also Harder to Prove

Growing up, most of us were taught to respect our elders. Recent trends, however, show that many people may have forgotten how they were raised. A recent online Newsweek article highlighted not only this disturbing trend but also how much more difficult it is for age discrimination victims to prevail.

According to the article, the U.S. Equal Employment Opportunity Commission recorded a seventeen percent (17%) increase in age-discrimination complaints since the current recession began in 2007. The article points out that as the economy suffers, companies usually lay off older workers (i.e. higher wage earners) first. We've often encountered cases like this in our practice - companies can not continue with their current wage costs and often seek to reduce those costs by terminating their highest wage earners. Most times, these high wage earners are the oldest workers. As the article points out, these claims are the easy claims to identify even when wages are used as a proxy for age.

As the article states, the more difficult age discrimination claims to identify and prove are those claims involving the hiring process. Most times, a rejected hire only learns that she or he has not been hired but neither learns the reason nor the identity of the individual who did get hired.

The Newsweek article also pointed out there are professions where age discrimination can be most common. One such area is in the Information Technology field. A recent article in ComputerWorld discussed how the nature of the information technology field itself pushes out elderly workers. The article attributed this push-out to high wages for older workers, the devaluation of experience and skills in favor of longer hours and higher work production, and the desire for laser-like focus on particular projects uninterrupted by "adult responsibilities" like childcare and families.

To make matters worse, all these age discrimination claims now have a much larger hurdle to overcome. In 2009, the U.S. Supreme Court issued its decision in Gross v. FBL Financial Services, Inc. (we previously discussed that decision here). As a result of that decision, individuals claiming age discrimination now must prove that age was the sole (or "but for") cause of the alleged discrimination. As the Newsweek article points out, this is extremely difficult to prove because so many factors can drive an employer's decision.

So what should we take away from all this? When examining cost-cutting measures, employers should be careful that they do not create an age discrimination claim and workers should strive to stay relevant and productive to avoid becoming a "cost saver." In any event, just as in life, we should strive to respect our elders in the workforce. More often than not, experience and wisdom matter.

Do Anti-Discrimination Laws Actually Have a Reverse Effect?

We recently came across a passage about the law of unintended consequences while reading the book Super Freakonomics. One particular paragraph noted that while the Americans with Disabilities Act (ADA) was passed to safeguard disabled workers from discrimination, data shows that there has actually been a net decrease in jobs for disabled Americans. Specifically, the book claims "[a]fter the ADA became law, employers were so worried they wouldn't be able to discipline or fire bad workers who had a disability that they avoided hiring such workers in the first place."

Do you believe that anti-discrimination laws actually have unintended consequences like those outlined in Super Freakonomics? Have you actually encountered any such unintended consequences? Do you think anti-discrimination laws are still necessary?

Paul Invited to Join Dallas Bar Foundation Fellows

We here at The Coles Firm P.C. would like to congratulate Paul Simon on his recent invitation to join the Dallas Bar Foundation (DBF) Fellows. The Dallas Bar Foundation provides financial support for law related research, publications, and forums, provides law related scholarships and education, and provides charitable and legal aid for the impoverished. Since 1981, the DBF has awarded more than $4.1 million.

DBF Fellows are attorneys who have demonstrated a high ethical standard and a commitment to the cause of justice and the welfare of the community. Election to the Fellows constitutes a high professional honor and we congratulate Paul on this great accomplishment.

Sports and Employment Law

We here at The Coles Firm P.C. hope you have not missed us too much in our brief absence these last few weeks. We're back now and while we were gone, we came up with a little something new for the blog. In addition to hearing from you this year on the blog, we decided to add a new regular post feature to the blog - sports. No, we won't be commenting on games and tournaments, and players (although ask any of us about that stuff and we'll most likely keep you busy for a while). Instead, we plan to talk about the intersection of sports and employment law. With that said, we have a great start to this new feature.

We recently read an article about a "charity clause" in Manny Ramirez' (of baseball's Los Angeles Dodgers) $45 million, two-year contract back in March 2009. What is this "charity clause?" Well, apparently there was a clause in Ramirez' contract that called for Ramirez to make a $1 million donation to the Dodgers Dream Foundation. The article went on to say that not only did other Dodgers players have "charity clauses" in their contracts, but so did Major League Baseball players from several different teams.

The idea became so prevalent (more than 100 players had such a "charity clause" in their contracts), that the MLB Players Association filed a grievance against Major League Baseball and claimed players should not be required to make donations to anyone.

Contracts have long been simply a matter of negotiation between the parties involved. In this case, Manny Ramirez negotiated for $45 million to play for the Dodgers and the Dodgers in turn negotiated for a $1 million charitable donation. Is it wrong of the Dodgers essentially to require Manny Ramirez to donate?

How many of you work for an employer and have had the following situation arise? Your boss (or boss' assistant on behalf of the boss) comes to you and tells you his or her child is selling some item as a fundraiser for school or a sports team or an after-school activity. Do you feel you have an option to tell your boss you are not interested in paying $10 for a bucket of cookie dough? What about during the holidays when someone starts collecting donations for Toys for Tots and everyone in the office donates? Do you feel you have the choice not to bring in a toy?

Don't get us wrong, we are all for charity. Charitable contributions provide for people who might not otherwise be able to provide for themselves. But how are these everyday work situations any different (albeit on a lesser scale) than requiring a major league sports player to donate a portion of his or her millions of dollars to charity? One might even argue these sports players are in a better situation than the general working public - the sports players can simply go negotiate with another team that does not require a charitable donation.

There is nothing illegal about what the Dodgers chose to do in Manny Ramirez' case. In fact, through their actions, the Dodgers actually help the less fortunate. But does that make it right? What would you do if your employer wanted to insert a "charity clause" in your employment contract?

Coles Corner Winning Wine: February 2010 (Archive)

Rombauer Chardonnay 2008 – Rombauer’s Chardonnay is a classic California wine, offering a delightful hint of oak that does not overpower the grape. Beginning smooth on the pallet, this Chard ends with a mult-layered finished.

Coles Corner Winning Wine: January 2010 (Archive)

January 2010: Lioco 2007

Pinot Noir. This is a Pinot

Noir of a different breed.

Not the light and playful

variety, this Pinot Noir

packs punch. An unfiltered

and unfined wine, the Lioco

Pinot Noir has spicy notes

and an earthiness

reminiscent of South

American wines like the

Malbec and Carmenere.