‘Youth’ Employment Plans Could Land U.S. Firms in Court

Nestlé's plan to give youths jobs OK in EU

By Susan Milligan Dec 19, 2013

Youth unemployment is at an alarming 24 percent in Europe, and Nestlé announced it’s coming to the rescue with a program to hire 10,000 people under 30 and take on another 10,000 as apprentices in its European operations.

But American HR specialists and labor lawyers caution: Don’t try this at home.

The Nestlé Youth Employment Initiative, explained Laurent Freixe, CEO of Europe Nestlé SA, is designed to do what governments in Europe have failed to accomplish: Get more young people into the skilled workforce so they’re ready to take over when older employees retire.

“Think of the impact on our society, on our institutions, on our communities if these young people are left on the margins, without income, without a future, without hope,” Freixe said at a speech in Athens announcing the program.

That’s a lovely thought, but it’s just not legal here, said U.S. recruiters and lawyers. and any American company that so brazenly announces a hiring binge that specifically excludes older candidates is asking for a lawsuit.

“On its face, it’s sort of like an affirmative action-type plan, and these are allowed [in the U.S.] for the purposes of trying to reach out to get more applications from various groups,” said John Zaloom, an employment lawyer at Moore & Van Allen in Morrisville, N.C. But “I wouldn’t want that piece of evidence when I’m looking at a wage claim.” Affirmative action, he explained, means encouraging certain groups to apply for jobs, whereas categorically limiting hires to a certain age bracket or other group is discrimination.

Europe “isn’t burdened by a lot of the laws we have here—it’s not illegal in Europe, though in the U.S., we could never do that,” said Todd R. Wulffson, a lawyer at California-based Carothers DiSante & Freudenberger LLP, which represents businesses in labor and employment disputes.

U.S. law prohibits age discrimination against people 40 and older. Even advertising phrases such as “young and energetic” and “recent college grads” can get an employer into trouble, cautioned David Weisenfeld, a labor lawyer and legal editor at Xpert HR.

However, the federal law applies only to organizations with 40 or more workers, noted Wendy K. Voss, a labor lawyer at Delaware-based Potter Anderson Corroon. State laws apply after that, she said, but they differ on age-discrimination standards.

There are other ways for U.S. companies to attract younger workers legally, said Kristen Irey, manager of the human resource program at Peirce College in Philadelphia. “Things like ‘entry level’ or ‘No experience required’ … these are ways you can target your ads” without being slapped with an age-discrimination suit. And there’s nothing wrong with reaching out to young people, say, by recruiting on college campuses, as long as people over 40 aren’t excluded, experts said.

Asked to comment on the initiative and the possibility of discriminatory hiring, Nestlé’s UK office directed SHRM Online to its statements formally announcing the plan. Those speeches and statements focused on the need to alleviate youth joblessness and did not address the question of age discrimination. Nestlé’s USA website says the company is an equal opportunity employer and committed to diversity. The company in 2000, however, was directed by a California court to pay $5.1 million to a former manager who sued for age discrimination and to tell employees it was repudiating an executive’s 1993 memo on plans to hire and promote “young people.”

Some companies might want younger workers, not necessarily to alleviate joblessness among twentysomethings but to represent the profile of their business or the demographics of their customer base, said Steve Gibson, a hospitality-industry talent recruiter at TalentServed. He explained that restaurants often want young, attractive women as marketers because they believe that people will be more likely to book an event at a venue with young, hip-looking sales representatives.

But purposely shutting out over-40s? That will land a U.S. company in court.

Susan Milligan is a freelance writer based in Washington, D.C.


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