Age Discrimination, Workplace Issues at House Hearing

Published in RINewsToday.com on March 22, 2021

Just days ago, Rep. Robert C. “Bobby” Scott (D-VA), chairperson of the House Committee on Education and Labor and Rep. Rodney Davis (R-IL) introduced, H.R. 2062, the bipartisan “Protection Older Workers Against Discrimination Act” (POWADA), a bill that would strengthen federal anti-discrimination protections for older workers. The legislation was introduced March 18, 2021, the same day of a joint House Education and Labor Subcommittee hearing, held to address a variety of workplace issues.  POWADA has been referred to the House Committee on Education and Labor for consideration.

The reintroduction of POWADA is timely.  As the COVID-19 pandemic continues, older workers are attempting to keep their jobs, working more and longer than they ever have. When seniors lose their jobs, they are far more likely than younger workers to join the ranks of the long-term unemployed. And unfortunately, discrimination appears to be a significant factor in older workers’ long-term unemployment.

A 2018 survey conducted by the Washington, DC-based AARP found that 3 in 5 workers age 45 and older had seen or experienced age discrimination in the workplace. The 2018 survey also found that three-quarters of older workers blame age discrimination for their lack of confidence in being able to find a new job.

Congress Gears Up to Again Fight Age Discrimination

Reps. Scott and Davis were joined by seven Republicans and 14 Democrats, including Civil Rights and Human Services Subcommittee Chair Suzanne Bonamici (D-OR) and Workforce Protections Subcommittee Chair Alma Adams (D-NC) to support H.R. 2062.

Rhode Island Rep. David Cicilline has also requested to be a co-sponsor of this legislation.

POWADA was first introduced in Congress after an adverse 2009 Supreme Court decision, Gross v. FBL Financial Services, made it much more difficult for older workers to prove claims of illegal bias based on age. Under Gross, plaintiffs seeking to prove age discrimination in employment are required to demonstrate that age was the sole motivating factor for the employer’s adverse action.  The Supreme Court ruling upends decades of precedent that had allowed individuals to prove discrimination by showing that a discriminatory motive was one of the factors on which an employer’s adverse action was based.

Scott’s reintroduced POWADA returns the legal standard for age discrimination claims to the pre-2009 evidentiary threshold, aligning the burden of proof with the same standards for proving discrimination based on race and national origin.

“Everyone– regardless of their age – should be able to go to work every day knowing that they are protected from discrimination. Unfortunately, age discrimination in the workplace is depriving older workers of opportunities and exposing them to long-term unemployment and severe financial hardship, says chairperson Scott, noting that the reintroduced bipartisan bill would finally restore the legal rights under the Age Discrimination in Employment Act, which covers workers age 40 and over.

Republican Rep. Rodney Davis puts aside political differences and has stepped up to the plate with a handful of GOP lawmakers to co-sponsor Scott’s POWADA legislation. “Every American, including older Americans, deserves to work in a workplace or jobsite that is free from discrimination. That’s why I’m proud to team up with chairperson Bobby Scott and a bipartisan group of lawmakers in introducing the Protecting Older Workers Against Discrimination Act. Our bipartisan bill provides workplace protections for older workers by removing barriers they have to filing discrimination claims, ensuring their workplace rights can be enforced, says Davis, pledging to work with colleagues on both sides of the aisle to finally get the bill passed,” he says.    

Oregon Rep. Bonamici, who chairs the Subcommittee on Civil Rights and Human Services, notes that her state has a rapidly aging population, and age discrimination in the workplace remains disturbingly pervasive.  She joins Scott in cosponsoring POWADA.

“I’ve heard from Oregonians who were denied or lost a job because of their age, but the bar for proving discrimination is very high and the outcomes are uncertain. The bipartisan Protecting Older Workers Against Discrimination Act makes it clear that unlawful discrimination in the workplace is unacceptable and holds employers accountable for discriminatory actions,” says Bonamici.

Adams, who chairs the Subcommittee on Workforce Protections, joins Bonamici in cosponsoring POWADA.  The North Carolina Congresswoman states: “Labor law must protect the dignity of all workers and it must recognize that discrimination against older Americans is discrimination all the same,” says Adams, who chairs the Subcommittee on Workforce Protections. The North Carolina Congresswoman notes that POWADA ensures that older workers will be fairly treated in the job market, returning the legal standard for proving discrimination back to its original intent. There is no place for disparate treatment based on age in the workforce.”

“Labor law must protect the dignity of all workers and it must recognize that discrimination against older Americans is discrimination all the same,” says Adams, who chairs the Subcommittee on Workforce. The North Carolina House Lawmaker says that POWADA ensures that older workers will be fairly treated in the job market, returning the legal standard for proving discrimination back to its original intent. There is no place for disparate treatment based on age in the workforce.

“The introduction of this bill is a crucial step to strengthening the law and restoring fairness for older workers who experience age discrimination,” said Nancy LeaMond, AARP Executive vice president and Chief Advocacy & Engagement Officer. “It sends a clear message that discrimination in the workplace – against older workers or others – is never acceptable.

“Age discrimination in the workplace, like any other kind of discrimination, is wrong.,” said AARP Rhode Island State Director Kathleen Connell. That’s why AARP is fighting all forms of age discrimination in the hiring process and on the job, including an unfair court decision that makes age discrimination more difficult to prove than race- or sex-based discrimination. “Rhode Islanders are living and working longer and experienced workers bring expertise, maturity, and perspective,” Connell added. “Yet negative stereotypes and mistaken assumptions mean that older people are often treated unfairly in the workplace. We need bipartisan Congressional action to address this stubborn and persistent problem.”

Tackling Workforce Issues

Over two-hours, four witnesses testified at a joint Zoom hearing, “Fighting for Fairness: Examining Legislation to Confront Workplace Discrimination,” held before the House Education and Labor Subcommittee on Civil Rights and Human Services and the Subcommittee on Workforce Protections. The morning hearing addressed an array of workforce issues including race and longstanding gender inequities and barriers and pregnancy discrimination at the workplace. A spotlight was also put on the rampant increase of age discrimination that older workers are now facing in the job market and the need to pass POWADA to reverse the detrimental impact of a 2009 Supreme Court decision.

Lauren McCann, senior attorney at AARP Foundation, pointed out to the attending House lawmakers that age discrimination in the workplace remains “stubbornly persistent” and urged a House Education and Labor hearing to “re-level the playing field” by passing strong anti-bias legislation.

McCann told the committee that the ongoing COVID-19 pandemic has exacerbated the problems faced by older workers, who have left the labor force in the last year at twice the rate during the Great Recession.

McCann testified that passage of POWADA, sponsored by Scott, the Chair of the House Committee of Education and Labor, is crucial to reverse the 2009 Supreme Court decision in the Gross v. FBL Financial Services, Inc. case. McCann said that the high court’s 2009 decision abruptly changed the standard — from the longstanding requirement under the ADEA that a worker prove that age is just one motivating factor in adverse treatment on the job — to a much higher and tougher to prove standard: that age is the standard motive.

“Older workers now always bear the burden of persuasion in ADEA cases,” McCann emphasized.

According to McCann, House hearing comes at a time when older workers have been battered by the economic downturn caused by the pandemic. Unemployment for workers age 55 and older more than doubled between Feb. 2020, just before the pandemic began, and last month, based on AARP Public Policy Institute (PPI) analysis of federal data.

The number of age 55 and over unemployed has also doubled, up from one million in February 2020, to 2 million last month, according to PPI.

Turning to the Senate…

At press time, a senior Senate aide for Sen. Bob Casey (D-PA), who chairs the Senate Special Committee on Aging, says the Senator is posed to follow the House by throwing the Senate’s POWADA Senate companion measure into the legislative hopper Monday. 

The Pennsylvania Senator clearly understands why he again must push for the passage and enactment of POWADA.  “As more Americans are remaining in the workforce longer, we must recognize and address the challenges that aging workers face. We must make it clear to employers that age discrimination is unacceptable, and we must strengthen antidiscrimination protections that are being eroded,” says Sen. Casey. “POWADA would level the playing field for older workers and ensure they are able to fight back against age discrimination in the workplace.”

Fraud Victimization is a Chronic, Escalating Problem for Seniors

Published in the Pawtucket Times on March 8, 2021

Everyone has heard of the ago old proverb, “Fool me once, shame on you, fool me twice, shame on me.”  After being tricked once, hopefully a person learns from one’s mistakes and avoids being tricked in the same way again.   But for many victims of financial fraud, this is not the case.

Last week, AARP, the FINRA Investor Education Foundation (FINRA Foundation) and Heart+Mind Strategies released a four-phase study that identifies evidence-based ways to help repeat victims of financial fraud and their families to avoid being tricked again.

The study’s researchers note that over the years intervention strategies have generally remained the same, while the sophistication of the scammers continues to evolve.  This new study, “Addressing the Challenge of Chronic Fraud Victimization,” released on March 4, provides “new thinking” as to how to support victims of financial fraud and scams who are repeated targeted and fall victim to sophisticated scammers.

According to the study, some of the common tactics used savvy scammers include: playing upon fear, need, excitement, and urgency; making threats; creating a belief of scarcity; using the victim’s personal life and history to create trust; and using emotional stimuli, like hope of winning a prize or finding love, to lure in the victim. 

 The Chronic Fraud Victimization study, published during National Consumer Protection Week (NCPW), scheduled from February 28 to March 6, uses a behavior model to help illuminate factors that may contribute to repeat or chronic victimization by financial fraud schemes.

Looking at Chronic Fraud Victimization

According to AARP, “about one-in-ten U.S. adults are victims of fraud each year, losing billions of dollars annually to criminals through a variety of scams, including natural disaster scams, fake charities, fake prize promotions, and government imposter scams, such as Social Security and Medicare scams.”

“The drivers behind chronic fraud victimization have remained a mystery, so this study is an important step to being able to stop the cycle,” said Kathy Stokes, director of fraud prevention programs and leader of the AARP Fraud Watch Network in a statement announcing the release of the study findings on March 4. “Chronic fraud can give targets and their families a sense of helplessness. By gaining a better understanding of the target’s drivers, we are hopeful there can be more meaningful interventions to disrupt and end the cycle,” notes Stokes.

Last year, the FINRA Foundation and the AARP Fraud Watch Network engaged Heart+Mind Strategies to deploy a four-phased study of chronic fraud victimization to uncover evidence-based concepts for effective interventions. The study’s goal was to generate new ways of thinking as to how to best support the individuals and families repeatedly targeted and victimized by financial scams and fraud. The study’s researchers accomplished this goal by reviewing existing literature, interviewing subject matter experts, chronic victims of financial fraud, and family members of victims, and finally, hosting two expert roundtables as a part of the study.

“This research provides a new lens through which to identify key intervention strategies that could disrupt the cycle of chronic fraud victimization at one or more points along the path to victimization,” adds Gerri Walsh, President of the FINRA Foundation. “We hope it stimulates additional attention to the need for effective interventions that may reduce chronic fraud victimization,” she says.

The 13-page study found that chronic fraud victimization may be a consequence of chronic susceptibility due to certain situational factors that disrupt judgement and derail good intentions. The researchers say that one of the most effective ways to reduce chronic fraud victimization may be to reduce chronic susceptibility. However, they note that chronic susceptibility can be challenging to identify and address. The study offers ideas for managing other factors, such as triggers that elicit an emotional response and the ability to access funds, which may be more scalable ways to reduce fraud victimization rates or counteract the negative consequences associated with being a victim.

The study identified the importance of fraud education but acknowledged that victims or would-be victims do not consider themselves as such, and consequently may not seek out help or absorb anti-fraud messaging. So, creating more in-the-moment education and intervention opportunities could be more effective approach, say the researchers. Partnering with clergy and counselors, or locations such as hair salons and churches, could provide more powerful messages and tools for potential or repeat victims, they note.

The researchers concluded that preventing chronic fraud victimization is a challenging task in the absence of interventions and individualized support.  However, even after a person has been scammed,  intervention is possible to lessen chronic fraud victimization and its impact.

Tapping into Free Resources

Anyone who suspects a fraud or has a family member experiencing chronic fraud can call the free AARP Fraud Watch Network Helpline at 877-908-3360 or visit aarp.org/fraudwatchnetwork for more information. The AARP Fraud Watch Network is a free resource that equips consumers with up-to-date knowledge to spot and avoid scams, and connects those targeted by scams with fraud helpline specialists, who provide support and guidance on what to do next. The Fraud Watch Network also advocates at the federal, state and local levels to enact policy changes that protect consumers and enforce laws.

Investors with questions or concerns surrounding their brokerage accounts and investments can also contact the FINRA Securities Helpline for Seniors toll free at 844-57-HELPS (844-574-3577) Monday through Friday from 9 a.m. – 5 p.m. ET. FINRA staff can help investors with concerns about potential fraud or unsuitable or excessive trading; answer questions about account statements or basic investment concepts, and assist beneficiaries who are having trouble locating or transferring their deceased parents’ assets.

According to AARP, the Washington, DC-based aging group and FINRA Foundation have a long history of collaboration on research and programs that explore and combat financial fraud. Working together, the Foundation and AARP Fraud Watch Network’s fraud fighter call centers, have conducted outreach to more than 1.7 million consumers, enabling them to identify, avoid and report financial fraud.

National Consumer Protection Week is a time to help people understand their consumer rights and make well-informed financial decisions about money.

Whitehouse Pushes for COVID-19 Senate Proposal to Protect Residents, Employees

Published in the Pawtucket Times on March 1, 2021

As the one-year anniversary of the coronavirus disease (COVID-19) pandemic approaches, U.S Senator Sheldon Whitehouse (D-RI) joins Senators Bob Casey (D-PA), Raphael Warnock (D-GA), Richard Blumenthal (D-CT), and Cory Booker (D-NJ) in introducing a legislative proposal to save lives of nursing home residents and employees and assist with vaccinations.   At press time, over 1.3 million nursing residents and workers in long-term care facilities have been infected with COVID-19 and more than 170,000 have died so far, accounting for approximately 35 percent of COVID-19 deaths nationwide.

Taking a Close Look at S.333

Last week, S.333, “The COVID-19 Nursing Home Protection Act,” was thrown into the legislative hopper.  Initially introduced last Congress, the latest version, now being considered by the Senate Finance Committee, would provide funding to give nursing homes the needed resources to keep residents and workers safe; funding would go towards providing vital infection control assistance and organizing local health and emergency workers – known as “strike” or “surge” teams – to manage COVID-19 outbreaks and care for residents.  At this time no House companion measure has been introduced.

S. 333, introduced on Feb. 22, would provide $210 million for the Secretary of HHS to contract with quality improvement organizations to provide essential infection control assistance to nursing homes. 

Moreover, the legislative proposal would also send $750 million in funding to states to implement “strike” or “surge” teams. States are using “strike” or “surge” teams to ensure a sufficient number of aides, nurses and other providers are available to care for residents. Such teams also help manage COVID-19 outbreaks within a facility, particularly as vaccinations proceed in these settings. Since August, approximately 20 percent of nursing homes have reported each week that they do not have a sufficient workforce to care for residents.”

The impact of the pandemic has been devastating to minority communities, where reports have indicated that facilities serving significant numbers of Black and Hispanic residents were twice as likely to have COVID-19 infections. S. 333 would require the HHS Secretary to collect and make public demographic data on COVID-19 cases and deaths, including information on age, race, ethnicity, and preferred language. 

Whitehouse supports President Joe Biden’s call for the implementation of strike teams in his American Rescue Plan to help address these persistent shortages as well as the collection and dissemination of data on suspected and confirmed COVID-19 cases and deaths by race, ethnicity and preferred language.

Controlling COVID-19 Outbreaks in the Nation’s Nursing Homes

“Nursing home residents and staff have been through a traumatic year,” said Whitehouse who sites on the Senate Finance Committee.  “We need to prioritize vaccinating and caring for the Americans who live and work in these settings.  That means providing additional staff as needed to control outbreaks and making sure every resident and care worker who wants a vaccine can get one.,” said the Rhode Island’s junior Senator who has served since Jan. 4, 2007.

“As more than 170,000 residents and workers in nursing homes and other long-term care facilities have died from COVID-19, it is critical that Congress pass the COVID-19 Nursing Home Protection Act,” says Sen. Bob Casey, Chair of the U.S. Special Committee on Aging.

“This bill would address persistent staffing shortages in nursing homes by utilizing strike teams, promote infection control protocols and require that demographic data is collected on COVID-19 cases and deaths,” notes Casey.

Adds Casey, “The challenge this terrible virus poses are unprecedented and requires an immediate and extraordinary response. That is why my colleagues and I are advancing strategies to give states what they need – funding for ‘strike’ teams to help address staffing shortages in nursing homes and assist with vaccinations in these settings. We have an obligation to protect our most at-risk citizens.”

 “We applaud the efforts of Senator Whitehouse and his colleagues to provide funding for the protection of nursing home residents and staff,” said Scott Fraser, President and CEO of the Rhode Island Health Care Association, an affiliate of the Washington, DC-based American Health Care Association.  “We are especially pleased with the creation of strike teams to address the critical issue of staffing shortages during times of crisis.  This is a suggestion that RIHCA brought to Senator Whitehouse’s attention this past Spring when our homes were in critical need of additional staff due to the pandemic.  We thank him for listening and taking action,” he says.

At press time, 12 Democratic Senators join Sens. Whitehouse, Casey, Warnock, Blumenthal, and Booker, becoming cosponsors to this legislation.  They are: Sens. Maria Cantwell (D-WA), Bob Menendez (D-NJ), Jeanne Shaheen (D-NH), Tina Smith (D-MN), Amy Klobuchar (D-MN), Tammy Duckworth (D-IL), Chris Van Hollen (D-MD), Sherrod Brown (D-OH), Catherine Cortez Masto (D-NV), Jack Reed (D-RI), Maggie Hassan (D-NH) and Mazie Hirono (D-HI). 

A Call for Bipartisan Support

With the Senate now under Democratic control, there is a good chance that S. 333 will be considered by the Senate Finance Committee and if passed sent to the floor for consideration.   During the 116th Congressional session, the former Senate GOP Majority Leader, Mitch McConnell, of Kentucky, who often called himself the “Grim Reaper,” sent Democratic legislation to a legislative graveyard, refusing to act on Democratic legislation, even proposals with bipartisan support.

It’s time for Senate Republicans to support a Democratic proposal that protects the health and safety and the wellbeing of nursing home residents and workers in the nation’s 15,600 nursing homes. 

Partisan politics shouldn’t play a role in Senate Minority Leader Mitch McConnell’s decision to not urge his caucus to support this worthy legislative proposal.  S. 333 truly deserves bipartisan support and enactment, especially during the ongoing COVID-19 pandemic.