RESEARCH TRIANGLE PARK – There’s no letup in the legal battle between hundreds of employees who allege age discrimination and tech giant IBM, which is seeking to quash the case. A lawyer for some of the former IBM workers says they want more IBM documents she calls “shockingly incriminating” unsealed for review and are seeking declaratory judgment in their favor; IBM wants judgment in its favor.
Action intensified this week when in a filing with the National Labor Relations Board that was first reported by Bloomberg, two former employees of IBM wrote that the company’s forced arbitration policy violates the National Labor Relations Act.
According to Bloomberg’s reporting, the two ex-employees, Jeffrey Rodriguez and Steve Apana, also accuse the company of “engaging in oppressive and threatening tactics in litigation and arbitration” and “enforcement efforts intended to suppress” legally-protected activism.
That’s not all.
Earlier this month, IBM moved for dismissal in a case filing in the District Court in the State of New York, 1:21-CV-06296. In the filing, dated Nov. 8, a consolidated memorandum, IBM argues that 25 cases ought to be dismissed due to the timing of their claims and the signing of confidentiality documents that stipulated terms of separation.
But the use of such agreements—and their legality—is one key factor in the case, according to Shannon Liss-Riordan, the lead plaintiffs’ lawyer for the class action lawsuit against IBM, who spoke with WRAL TechWire earlier this week.
IBM’s use of its confidentiality agreement is a practice with the goal of “trying to block employees in building arbitration,” said Liss-Riordan. “Simply by the fact that they’re in individual arbitration.”
IBM’s motion on Nov. 8 addressed 25 of 30 cases currently in process, said Liss-Riordan.
“We filed in federal court a number of declaratory judgment actions,” said Liss-Riordan. “We’re seeking a ruling on IBM’s attempt to use its arbitration clause to prevent employees from piggybacking on earlier filed claims of discrimination.”
IBM began to respond to the declaratory judgment actions, including the Nov. 8 filing, according to Liss-Riordan.
“Discrimination claims would be timely, even if filed years later,” said Liss-Riordan. “We represent hundreds of employees who have only recently learned about this discrimination effort,” she noted. “And are trying to join the case.”
IBM is trying to prevent that, said Liss-Riordan.
The memorandum from IBM calls the consolidated lawsuit a “last-ditch effort by Plaintiffs’ counsel to deflect the blame for their own failure to follow basic requirements such as filing timely claims and obeying standard confidentiality rules.”
The memorandum comes after the plaintiffs moved for summary judgment in late October. IBM’s filing argues for dismissal, stating that 23 of the 25 plaintiffs already sought arbitration and arbitrated their claims, and lost, due to the timing of those claims. Thus, alleges IBM, the provision is legally unenforceable, writing: “Under the FAA, Plaintiffs’ arbitration agreements must be enforced according to their terms as long as Plaintiffs had a fair opportunity to pursue their ADEA claims in arbitration” in the memorandum.
“We have no further comment beyond the filing,” a spokesperson for IBM told WRAL TechWire in response to a request for comment regarding the alleged claims, the latest court filing, and the class action lawsuit.
Liss-Riordan told WRAL TechWire that the legal representation for the plaintiffs is also seeking to unseal case filing and court documents for previous individual arbitrations, and also noted that prior to the October filings, it came to the firm’s attention “that IBM had been withholding documents.”
“We’ve now seen those documents,” said Liss-Riordan. “And they are shockingly incriminating.”
“Widespread, top-down effort to oust older workers to build a younger workforce,” said Liss-Riordan “to make room for millennial workers, throughout the company.”
Liss-Riordan noted that legal counsel for the plaintiffs is seeking to unseal court documents, and will continue to move forward with arbitration.
“In the original class action lawsuit we filed,” said Liss-Riordan, “The judge ordered us to start doing discovery, which we are finishing right now, it is procedural, regarding some of IBM’s procedural defenses.”
“We’ve got an upcoming hearing, where we will be asking the judge to let us begin with the merits discovery,” said Liss-Riordan, which could occur in December.
“The public has a right to know and see how this company’s highest officers were referring to older workers and their plans to rid the company of older workers,” said Liss-Riordan. “Thousands of employees who would have no reason to know that the reason they lost their job was systemic.”
In May 2018, former IBM employees told ProPublica that the federal government would launch a “nationwide probe” into the alleged age discrimination taken by IBM. Later that year, a Cary resident would file a lawsuit against the company.
The class action lawsuit alleges IBM laid off at least 20,000 employees above the age of 40 starting in 2012 and continuing through at least 2018, with intention of bringing more “millennial” workers into the company.
“We intend to show IBM that it cannot escape discrimination laws this way,” Liss-Riordan told WRAL TechWire in 2018. Four other plaintiffs brought cases against IBM in March 2019, and IBM contended at the time that its employment practices were legal. In July 2019, a former vice president of human resources, Alan Wild, said that IBM had “laid off 50,000 to 100,000 employees in just the last several years,” according to Bloomberg which reported on the case filings in a Texas court.
A letter sent to IBM by the United States Equal Employment Opportunity Commission in September 2020 included a finding that 85.85% of the “total potential pool of those considered for layoff” were “primarily older workers.” After the EEOC sent this letter, Liss-Riordan told WRAL TechWire that the EEOC analysis proved that “bigger forces” at IBM were involved and that the findings demonstrated a “broad intent” to weed out older workers and build a younger workforce.
“It’s possible that employees who were untimely, are not anymore,” she said at the time. Later than months, hundreds more former employees joined the class action lawsuit, according to Liss-Riordan.
A March 2021 decision limited the number of plaintiffs who can participate in the case, after a ruling made by United States District Judge Valerie Caproni.
“U.S. District Judge Valerie Caproni in a 77-page order on Friday said that workers who did not file complaints against IBM with the Equal Employment Opportunity Commission can only ‘piggyback’ on the complaints of the named plaintiffs in the 2018 lawsuit, and not those filed by individuals who later opted in,” Reuters reported in March. At the time, Bloomberg Law reported that “certain other ex-employees who agreed to arbitrate in exchange for severance, can’t pursue the case.”
“We’re still getting contacted by former IBM employees every day, and we’re still taking on new claims for anyone else who would like to join these actions,” Liss-Riordan told WRAL TechWire this week.