Delaware Employment Law Blog

Recruiting, Managing, and Retaining Millennials

The HR world has been abuzz with discussion about the generational dynamic between the aging baby boomers and the Web 2.0 world of Millennials. This five-part series is designed to give the rest of us some perspective.

A "Millennial," demographically speaking, is a person born after 1980. They are the youngest members of today's workforce. Experts estimate that by 2010, Millennials will outnumber both Baby Boomers and Gen Xers. Millennials (a/k/a "Gen Y") are our society's "digital residents," which means that they have enjoyed the luxuries of digital technology their entire lives, including the massive world of video games. Their digital residence has given their generation characteristics employers never seen before.

Some sociologists believe that as a result of their residence in the digital world (think instant messaging, Facebook, and MySpace), Millennials are significantly peer-oriented and constantly seek instant gratification. The bottom line: Millennials don't necessarily buy into the idea that in order to succeed at work, you need to get in early, stay late, and consistently work hard.

These characteristics can make it difficult for employers to adapt how and who they recruit, and how they manage and retain their new human resource. In short, Millennials are changing the way employers do the business of, well, employment. The next three installments provide tips on how your organization can tap into Millennial talent.

For more insight on Millennials and how they fit into your organization, consider the text "Millennials Incorporated" by Lisa Orrell. Ms. Orrell hosts the blog "Lisa's Generation Relations Blog." And, on May 20, 2008, HRHero.com will host Dr. Diane Gayeski, contributor to the Wall Street Journal and consultant to some of America's top employers, in an audio conference titled "Are you ready for the Millennials? What HR Needs to Know to Recruit and Manage the IPod Workers."

The focus of the next post in this series is Recruiting Strategies for the Next Generation.

Employers need to plan for the aging workforce—the "gray-haired demographic" is here to stay.

Aging Workforce News (AWN) talks about a newly introduced piece of legislation, the "Incentives for Older Workers Act." The proposed bill is designed to provide incentives and eliminate barriers for older Americans wishing to stay in the workforce longer, and encourage employers to recruit and retain older workers. AWN explains some of the bill's highlights:

Given the statistics on Baby Boomers in the workplace, this law could help employers deal with what Forbes.com calls the "Gray-Haired Workforce." By 2010, the number of workers aged 35 to 44--or those typically moving into upper management--will decline by 19%; the number of workers aged 45 to 54 will increase 21%; and the number of workers aged 55 to 64 will increase 52%. These statistic show that the workforce will include more and more employees aged 45 and over for several years to come. And they're not going anywhere—AARP reports that 79% of baby boomers say they have no plans to retire any time soon.

The U.S. District Court in Wilmington, Delaware awarded summary judgment to BE&K Engingeering Company, finding that the EEOC had failed to show that a 54-year-old engineer, who was laid off during a reduction in force, was replaced by someone significantly younger.

EEOC argued that in a reduction-in-force situation, the ADEA prima facie case analysis should be relaxed. The Commission contended that the EEOC only needs to show that BE&K retained several significantly younger engineers while terminating a member of the protected class.

"The analysis is not that simple," Magistrate Judge Mary Pat Thynge wrote, as she rejected EEOC's argument. She cited a district court decision stating that when considering whether an employer gave preferential treatment to younger employees during a RIF, a court must consider "the terminated employee's 'fungibility' or usefulness to the employer in comparison to other employees."

Here, the six younger engineers that EEOC cited as "similarly situated" to the terminated engineer were all employed on long-term projects at the time of the RIF, the court emphasized. The EEOC argued that all engineers were expected to perform the same tasks and easily could be swapped between projects. Significantly, the court rejected the contention, finding that it "fails to address the adverse business costs and impact on future projects when senior engineers are placed on jobs that require only entry-level qualifications."

This case demonstrates the Court's continued respect for the need of businesses to make decisions based on the economic realities of the workplace.

The full decision, EEOC v. BE&K Eng'g Co., can be found at Magistrate Judge Thygne's website.

The U.S. District Court in Wilmington, Delaware awarded summary judgment to BE&K Engingeering Company, finding that the EEOC had failed to show that a 54-year-old engineer, who was laid off during a reduction in force, was replaced by someone significantly younger.

EEOC argued that in a reduction-in-force situation, the ADEA prima facie case analysis should be relaxed. The Commission contended that the EEOC only needs to show that BE&K retained several significantly younger engineers while terminating a member of the protected class.

"The analysis is not that simple," Magistrate Judge Mary Pat Thynge wrote, as she rejected EEOC's argument. She cited a district court decision stating that when considering whether an employer gave preferential treatment to younger employees during a RIF, a court must consider "the terminated employee's 'fungibility' or usefulness to the employer in comparison to other employees."

Here, the six younger engineers that EEOC cited as "similarly situated" to the terminated engineer were all employed on long-term projects at the time of the RIF, the court emphasized. The EEOC argued that all engineers were expected to perform the same tasks and easily could be swapped between projects. Significantly, the court rejected the contention, finding that it "fails to address the adverse business costs and impact on future projects when senior engineers are placed on jobs that require only entry-level qualifications."

This case demonstrates the Court's continued respect for the need of businesses to make decisions based on the economic realities of the workplace.

The full decision, EEOC v. BE&K Eng'g Co., can be found at Magistrate Judge Thygne's website.

Responding to Smith v. City of Jackson, the EEOC has issued proposed regs addressing disparate impact claims brought under the Age Discrimination in Employment Act (ADEA).

It has been three years since the Supreme Court issued its decision in Smith v. City of Jackson, 544 U.S. 228 (2005). In , the Court held that the ADEA authorizes claims of disparate-impact discrimination. The EEOC had taken this position long before the Court's decision.

The Court also held that the appropriate standard for determining the lawfulness of a contested practice is whether the practice can be justified by a "reasoanble factor other than age." (The "RFOA test"). This was a departure from the more stringent, "business-necessity" requirement maintained by the EEOC. The new proposed regulation would reflect the City of Jackson decision. The proposed regulation also clarifies that the employer has the burden to show that a RFOA actually exists.

The text of the Notice of Proposed Rulemaking can be found in the March 31, 2008, edition of the Federal Register.