The ADEA’s Effect on Less Technology-Savvy Workers
Casey Sipe | Business, HR| By
We all have a few in our office: workers who don’t understand technology, have no interest in learning to use technology or are (secretly) afraid of technology. They eschew computers except for the most basic tasks, maybe they print out emails, they hunt and peck on keyboards, they either use a “flip phone” or don’t use a cell phone at all. If you are one of these folks, you may want to stop reading now, well, I’m sorry but you’re going the way of the Dodo…
In some circumstances, a lack of tech savvy isn’t a problem. Maybe your employees can get by with their current technology skills. In most cases, though, technology is not only ever-present, but a necessity. Can your professional services firm afford to have professionals with no knowledge of social media? Can your warehouse continue working efficiently without a computerized inventory system? Can your salespersons succeed without utilizing the massive amounts of computerized data available to target potential clients? I submit that the answer is simple: no.
The ADEA’s Effect on Less Technology-Savvy Workers
Here’s the problem: the Age Discrimination in Employment Act (ADEA) forbids an employer from taking an adverse employment action based on an employee’s age, specifically for employees over age 40. Now I like to avoid generalizations, but most of the technophobic folks in your organization are likely over age 40. As a result, in an adverse employment action due to a lack of tech-savvy, the employee will likely be over 40, and the ADEA invoked any employment action needs to be carefully considered.
First, you should offer training to your employees. You should probably already be doing this anyway, but maybe some of your employees need a little extra attention. Whether its in-house training or something offered by another organization, training is a great way to keep employees who are performing well but would benefit from a productivity boost by learning to properly use technology. Make sure that the training is properly tailored to the employee’s position, and embrace their suggestions for additional training topics. Sometimes, your employees have a better grasp on what they need to learn than you. Not only should you offer training, but you should document the offering as well. In the event you need to let someone go, you want proof that you offered them training and an opportunity to fix the problem.
Do Your Homework
Don’t just assume that everyone in your organization would benefit from greater technological savvy. I’m a huge proponent of technology, and I believe most employees will be more productive if their organization provides the correct tools and provides training on usage. However, that’s not always the case. It’s up to you to evaluate each position or employee to determine whether a certain level of tech-savvy is required and what particular prowess is needed. You’ll need to back up any choices with hard evidence, in case the employee refuses training and needs to be let go. Hard evidence that an employee’s productivity was significantly reduced due to a conscious decision to eschew training would go a long way to proving age was not your consideration in an adverse employment decision.
Consider a Severance Agreement
If you have an employee who has no interest in improving their technology knowledge-base, and you determine that a termination is required, consider using a severance agreement. A severance agreement will soften the blow for the employee and can provide you with some protection based on an ADEA or other federal law claim. In return for a few more paychecks, you can avoid an expensive lawsuit (and possibly more expensive verdict). Be careful with the language disclaiming an ADEA claim though, because the ADEA has specific requirements. In fact, calling in counsel to assist is almost essential nowadays with the NLRB stepping in to muddy the waters.
So, in all likelihood, knowledge regarding the proper use of technology is now a requirement in your organization. Think training first, then evaluate the situation and finally, protect the organization if a termination must happen.
Tom Bolt says
“Now I like to avoid generalizations, but…” followed by an outpouring of generalizations. Your bias is not just age oriented but also smacks of elitism of someone who has never had dirt under his fingernails. Everybody is not a college educated techno-nerd which is why spam and phishing are alive and well. Attacks targeted at unsophisticated technology users don’t just impact the “old” people, so you did get one thing right: Education is essential to protect our personal privacy and data security. Unfortunately, there is no app that can protect us from opinionated drivel spewing a continuous stream of generational bias.
I stand by what I wrote. Technology is a necessity, and some tech-savvy is a requirement for many positions. I’m not suggesting everyone needs to be a “college-educated techno-nerd,” because many jobs don’t require that level of knowledge. But how many job postings require knowledge of Microsoft Office? Doesn’t that require some tech-savvy? The truth is that most of the people who lack tech-savvy are over 40 and therefore fall under the ADEA. Providing training is obviously the best course of action, but for those unwilling to learn skills that will make them more productive, an employer may not have any other choice but termination. And any termination of an employee over 40 requires consideration of the ADEA.
Tom Bolt says
Your opinion coupled with a fact does not take the edge off of your prejudice. “The truth is that most of the people who lack tech-savvy are over 40…” is not a truth “…and therefore fall under the ADEA.” is a self defined truth. This is blatant opinionated personal bias that, along with other misguided soothsayers, perpetuates the myths of generational differences. Older workers are no more technically illiterate than younger workers, and younger workers are also the victims of age bias for totally illogical reasons.
Steve Levy says
“I stand by what I wrote” smacks of a Millennial who has decided to take their soccer ball and go home when the coach took them out of the game for hogging the ball.
The sad part is that you have failed to define “tech savvy” which in the eyes of a judge and jury is, in the language of the “tech savvy” a #FAIL yet managed to sit high on your throne atop Billable Hours Mountain “looking out” for the welfare of the Luddites when in reality you’re simply trolling for clients using well-known ambulance chasing scare tactics.
“You’re generation” believes that using one’s opposable thumbs in a bilateral fashion is “tech savvy” – any ideas as to the current ages of the people who developed Microsoft or your revered – and perhaps inaccurately named – smartphone?
You’re right Steve, I am a Millenial. I didn’t define tech-savvy, because the amount of savvy required will vary based on the company or position. Like I said, employers need to do their homework and figure out whether a knowledge of technology is required and, if so, how much.
And I certainly do not define tech-savvy simply as the ability to operate a smartphone, text or use social media. They are absolutely a part of being tech-savvy, but a receptionist does not need to have those skills. She does, however, likely require skills with Microsoft Office and other computer programs. If he or she can’t operate those programs, and he or she is not willing to accept training, then the employer probably needs to let them go. And if they are over 40, the ADEA comes into play.
And let me be clear on this: I am not saying that the majority of people over 40 lack tech-savvy. I am saying that the majority of people who lack tech-savvy are over 40, possibly because they did not grow up with computers as an ever-present accessory. I’m well aware that most of the people running/working at tech companies are over 40, which is, again, why I’m not saying that people over 40 lack tech-savvy.
And I do stand by what I wrote, and I’ll happily defend it as well as any perceived bias on my part. HR practitioners considering an adverse action against an employee over 40 need to be aware of the ADEA and protect themselves accordingly.
Cyndy Trivella says
In regards to Mr. Sipe’s comments, here is a gentle reminder of what the law calls prejudice: “an irrational attitude of hostility directed against an individual, a group, a race, or their supposed characteristics …”
Cyndy, thank you for the definition, and I agree that any action falling under it would constitute prejudice. However, my post is neither irrational or hostile to those over 40. The truth is that most people who do not understand (or do not want to understand) technology are over 40, likely because it hasn’t been readily available all their lives, like it has been for younger workers. And I’m not advocating that employers start terminating employees due to their age, quite the opposite, in fact. I advocate training first, but if an employee isn’t productive enough due to a lack of skills, whether it is skills in technology or skills in some other respect, then they may need to be let go, regardless of their age. Workers over the age of 40 are afforded special protections under the ADEA, and therefore, any action against an employee over the age of 40 requires particular considerations.
Jessica Miller-Merrell says
I agree with you. Those who are not adopting the technology are at a huge disadvantage at work and many of them are over 40 simply just because technology wasn’t a necessity or a priority. I think of technology adoption just like the law of gravity. An object at rest tends to stay at rest. It’s hard to get started changing and embracing technology.
Those that have commented here are a small and hopefully growing percentage of individuals who welcome technology and are some of the savviest that I know. I also live in the real world where not everyone is so welcome with technology and will probably use their over 40 status to protect them from a job for not adjusting with the times and learning how to use technology.
I’m also a believer that being over 40 isn’t quite so special anymore. By 2035, the DOL tells us the median age in the US will be 39.1. Being 40 isn’t just a big deal anymore. They are going to have to increase the age when someone becomes a protected class. And until then, if I was RIFing workers who weren’t adopting the technology, I would absolutely get everyone of them to sign a severance agreement. Being in HR, it’s protection for my company.