Article 43

 

Thursday, March 22, 2018

Cutting Old Heads at IBM

image: unhappy it guy

As it scrambled to compete in the internet world, the once-dominant tech company cut tens of thousands of U.S. workers, hitting its most senior employees hardest and flouting rules against age bias.

By Peter Gosselin and Ariana Tobin
Pro Publica
March 22, 2018

For nearly a half century, IBM came as close as any company to bearing the torch for the American Dream.

As the world’s dominant technology firm, payrolls at International Business Machines Corp. swelled to nearly a quarter-million U.S. white-collar workers in the 1980s. Its profits helped underwritea broad agenda of racial equality, equal pay for women and an unbeatable offer of great wages and something close to lifetime employment, all in return for unswerving loyalty.

But when high tech suddenly started SHIFTING and companies went global, IBM faced the changing landscape with a distinction most of its fiercest competitors didn’t have: a large number of experienced and aging U.S. EMPLOYEES.

The company reacted with a strategy that, in the words of one confidential planning document, would “correct seniority mix.” It slashed IBM’s U.S. WORKFORCE by as much as three-quarters from its 1980s peak, replacing a substantial share with younger, less-experienced and lower-paid workers and sending many positions overseas. ProPublica estimates that in the past five years alone, IBM has eliminated more than 20,000 American employees ages 40 and over, about 60 percent of its estimated total U.S. job cuts during those years.

In making these cuts, IBM has flouted or outflanked U.S. laws and regulations intended to protect later-career workers from age discrimination, according to a ProPublica review of internal company documents, legal filings and public records, as well as information provided via interviews and questionnaires filled out by more than 1,000 former IBM employees.

Among ProPublicas findings, IBM:

· Denied older workers information the law says they need in order to decide whether they’ve been victims of age bias, and required them to sign away the right to go to court or join with others to seek redress.

· Targeted people for layoffs and firings with techniques that tilted against older workers, even when the company rated them high performers. In some instances, the money saved from the departures went toward hiring young replacements.

· Converted job cuts into retirements and took steps to boost resignations and firings. The moves reduced the number of employees counted as layoffs, where high numbers can trigger public disclosure requirements.

· Encouraged employees targeted for layoff to apply for other IBM positions, while quietly advising managers NOT TO HIRE THEM and requiring many of the workers to train their replacements.

· Told some older employees being laid off that their skills were out of date, but then BROUGHT THEM BACK AS CONTRACT WORKERS, often for the same work at lower pay and fewer benefits.

IBM declined requests for the numbers or age breakdown of its job cuts. ProPublica provided the company with a 10-page summary of its findings and the evidence on which they were based. IBM spokesman Edward Barbini said that to respond the company needed to see copies of all documents cited in the story, a request ProPublica could not fulfill without breaking faith with its sources. Instead, ProPublica provided IBM with detailed descriptions of the paperwork. Barbini declined to address the documents or answer specific questions about the firms policies and practices, and instead issued the following statement:

“We are proud of our company and our employees ability to reinvent themselves era after era, while always complying with the law. Our ability to do this is why we are the only tech company that has not only survived but thrived for more than 100 years.”

With nearly 400,000 people worldwide, and tens of thousands still in the U.S., IBM remains a corporate giant. How it handles the shift from its veteran baby-boom workforce to younger generations will likely influence what other employers do. And the way it treats its experienced workers will eventually affect younger IBM employees as they too age.

Fifty years ago, Congress made it illegal with the Age Discrimination in Employment Act, or ADEA, to treat older workers differently than younger ones with only a few exceptions, such as jobs that require special physical qualifications. And for years, judges and policymakers treated the law as essentially on a par with prohibitions against discrimination on the basis of race, gender, sexual orientation and other categories.

In recent decades, however, the courts have responded to corporate pleas for greater leeway to meet global competition and satisfy investor demands for rising profits by expanding the exceptions and shrinking the protections against age bias.

Age discrimination is an open secret like sexual harassment was until recently,” said Victoria Lipnic, the acting chair of the Equal Employment Opportunity Commission, or EEOC, the independent federal agency that administers the nations workplace anti-discrimination laws.

Everybody knows its happening, but often these cases are difficult to prove because courts have weakened the law,” Lipnic said. The fact remains it’s an unfair and illegal way to treat people that can be economically devastating.

Many companies have sought to take advantage of the court rulings. But the story of IBMҔs downsizing provides an unusually detailed portrait of how a major American corporation systematically identified employees to coax or force out of work in their 40s, 50s and 60s, a time when many are still productive and need a paycheck, but face huge hurdles finding anything like comparable jobs.

The dislocation caused by IBMs cuts has been especially great because until recently the company encouraged its employees to think of themselves as ҒIBMers and many operated under the assumption that they had career-long employment.

When the ax suddenly fell, IBM provided almost no information about why an employee was cut or who else was departing, leaving people to piece together what had happened through websites, listservs and Facebook groups such as ӔWatching IBM or ӔGeographically Undesirable IBM Marketers, as well as informal support groups.

Marjorie Madfis, at the time 57, was a New York-based digital marketing strategist and 17-year IBM employee when she and six other members of her nine-person team Ӕ all women in their 40s and 50s were laid off in July 2013. The two who remained were younger men.

Since her specialty was one that IBM had said it was expanding, she asked for a written explanation of why she was let go. The company declined to provide it.

חThey got rid of a group of highly skilled, highly effective, highly respected women, including me, for a reason nobody knows, Madfis said in an interview. ӔThe only explanation is our age.

Brian Paulson, also 57, a senior manager with 18 years at IBM, had been on the road for more than a year overseeing hundreds of workers across two continents as well as hitting his sales targets for new services, when he got a phone call in October 2015 telling him he was out. He said the caller, an executive who was not among his immediate managers, cited Ӕperformance as the reason, but refused to explain what specific aspects of his work might have fallen short.

It took Paulson two years to land another job, even though he was equipped with an advanced degree, continuously employed at high-level technical jobs for more than three decades and ready to move anywhere from his Fairview, Texas, home.

“It’s tough when you’ve worked your whole life, he said. “The company doesn’t tell you anything. And once you get to a certain age, you don’t hear a word from the places you apply.”

Paul Henry, a 61-year-old IBM sales and technical specialist who loved being on the road, had just returned to his Columbus home from a business trip in August 2016 when he learned he’d been let go. When he asked why, he said an executive told him to “keep your mouth shut and go quietly.”

Henry was jobless more than a year, ran through much of his savings to cover the mortgage and health insurance and applied for more than 150 jobs before he found a temporary slot/

“If you’re over 55, forget about preparing for retirement,” he said in an interview. “You have to prepare for losing your job and burning through every cent you’ve saved just to get to retirement.”.

IBM’s latest actions aren’t anything like what most ex-employees with whom ProPublica talked expected from their years of service, or what today’s young workers think awaits them - or are prepared to deal with - later in their careers.

“In a fast-moving economy, employers are always going to be tempted to replace older workers with younger ones, more expensive workers with cheaper ones, those who’ve performed steadily with ones who seem to be up on the latest thing,” said Joseph Seiner, an employment law professor at the University of South Carolina and former appellate attorney for the EEOC.

“But it’s NOT GOOD FOR SOCIETY,” he added. “We have rules to try to maintain some fairness in our lives, our age-discrimination laws among them. You cant just DISREGARD THEM.”

“Old Heads” Needn’t Apply

For much of its history, IBM viewed its fate and that of its predominantly U.S. workforce as INSEPARABLE. By the late 1960s, the company’s grip on the mainframe computer business had grown so great the Justice Department sued it for monopolizing the industry, a case that dragged on for years before being dropped as “without merit.” Such dominance convinced executives they could deliver extraordinary workplace stability in return for loyal service.

“When recessions occur or there is a major product shift, some companies handle the resulting workforce imbalances by letting people go,” explained an employee handbook of the 1980s. By contrast, “IBM retrains, reassigns and even relocates employees.”

“For their part, continued the handbook, employees must be flexible, willing to change, work overtime, and adapt to new situations quickly.” The logic behind the bargain was that people are a treasured resource.” At IBM, they are treated like “one.”

But within a decade, IBM had stumbled not once but three times, in ways that would come to cost both the company and its workers. First, it failed to appreciate the major product shiftӔ behind a new chip technology that first entered peoples lives as the guts of pocket calculators and cheap digital watches and was making possible increasingly powerful and networked personal computers that undercut the companyӔs mainframe business. Second, it misjudged its employees reaction to switching to a kind of pension that no longer rewarded older, long-service workers. IBM workers responded with a lawsuit that forced the company to settle by paying more than $300 million and reinstating expensive traditional pensions for more than 100,000 of them.

And by the early years of the new century, IBM was falling behind again by failing to quickly devise innovative uses for the internet like its new rivals, Google, Facebook and Amazon. As it slipped, the company began having second thoughts about the price of unbending loyalty to its long-serving workforce.

In a little-noticed paper issued in 2006 by the London office of one of the companyҒs consulting arms, executives praised boomers experience, but described them as Ғgray hairs and ғold heads. While recognizing that older workers were important to high-tech employers such as IBM, it concluded that ԓsuccessor generations are generally much more innovative and receptive to technology than baby boomers.ԓ

The paper was subsequently cited in an age discrimination lawsuit in U.S. District Court in Pennsylvania. Before the complaint was settled last year, the plaintiffs alleged in a filing: IBMŔs Boomer employees being labeled by IBMӒs own research as uncollaborative, skeptical of leadership, technologically unsophisticated, less innovative and generally out of touch with IBMs brand, customers and objectives ג were shown the door in droves.

By the time IBMҗs current CEO, Virginia GinniԒ Rometty, took over in 2012, the company had shifted its personnel focus to millennials.

Rometty launched a major overhaul that aimed to make IBM a major player in the emerging technologies of cloud services, big data analytics, mobile, security and social media, or what came to be known inside as CAMS.

At the same time, she sought to sharply increase hiring of people born after 1980.

CAMS are driven by Millennial Traits,Ӕ declared a slide presentation for an invitation-only IBM event in New York in December 2014. Not only were millennials in sync with the new technologies, but they were also attuned to the collaborative, consensus-driven modes of work these technologies demanded, company researchers said theyd discovered. Millennials Ӕare not likely to make decisions in isolation, the presentation said, but instead ғdepend on analytic technologies to help them.

By contrast, people 50 or over are ԓmore dubious of analytics, ԓplace less stock in the advantages data offers, and are less ԓmotivated to consult their colleagues or get their buy in Itԓs Baby Boomers who are the outliers.

The message was clear. To succeed at the new technologies, the company must, in the words of the presentation, Œbecome one with the Millennial mindset. Similar language found its way into a variety of IBM presentations in subsequent years.

Even before the New York conference, IBM had begun a major effort to recruit millennial employees. It launched a blog, ԓThe Millennial Experience, and a hashtag on Twitter, #IBMillennial.ԓ It began an online and print advertising campaign primarily featuring young people. It established a Millennial Corps,Ԕ a network of more than 5,000 young IBMers whom Rometty and other top executives said theyd regularly consult before making business decisions. And it sharply improved benefits, like parental leave, especially important to younger employees.

Its initiatives won IBM plaudits from womenӔs groups; lesbian, gay, bisexual and transgender organizations; human rights and disability associations; indeed advocates for just about every class of people protected under U.S. equal employment opportunity laws.

And the entire effort was guided by something that then-IBM brand strategist Bill Grady told the 2014 conference: WhatҒs good for Millennials is good for everyone.

Exit Strategy

As IBM trained its sights on younger workers, it also took steps to change the way it dealt with those whoӒd spent many years on the job. It embraced a legal strategy that made it much easier for the company to dismiss older workers, and to do so in ways that minimized legal consequences and largely avoided public attention.

Until 2014, IBM had provided two lists to workers getting laid off. One showed the positions and ages, but not the names, of all the people laid off from their business units at the same time. The other showed the positions and ages of all those staying on. For example, Madfis, the digital marketing strategist, got a list when she was let go in July 2013.

Such lists are common in corporate layoffs, thanks to a disclosure requirement added to the ADEA in 1990. The reason for the new rule was that virtually all employers had begun making severance pay and other parting benefits contingent on a laid-off worker signing away the right to sue the company. Congress wanted to make sure that before employees signed such waivers they understood enough to make knowing and voluntaryԒ decisions about whether they might have been targeted because of their age.

IBM complied with the disclosure requirement for more than two decades. As a result, even when the company stopped disclosing its U.S. employment totals and thus its job cuts Ӕ the numbers still became known as employees collected and tallied the number of layoffs from lists provided to workers by various company units.

One Departure, Two Letters

Just a few months after receiving a layoff notice, the same employee received a congratulatory letter about retiring.

So after it ran into political flak for its workforce reductions, IBM decided to stop giving out the lists. When Diane Moos, 62, of Long Beach, California, lost her job as a systems security specialist in May 2016, she had no way of knowing how many people had been laid off with her, or their ages.

IBM spokesman Doug Shelton said at the time the company was acting out of concern for its workers who had complained the disclosures infringed on employee privacyח even though the lists contained no names.

How did IBM get around the legal requirement for the disclosures? With a move that even critics acknowledge is ingenious.

The companyӔs pre-2014 layoff documents required employees receiving severance to waive all bias claims based on race, national origin, ancestry, color, creed, religion, sex, sexual orientation, pregnancy, marital status, age ג disability, medical condition, or veteran status. The new documents deleted Ӆage from the waiver list. In fact, they specifically said employees were not waiving their right when it came to age and could pursue age discrimination cases against the company.

But, the new documents added, employees had to waive the right to take their age cases to court. Instead, they had to pursue them through private arbitration. Whatԓs more, they had to keep them confidential and pursue them alone. They couldnt join with other workers to make a case.

With the new documents in place, IBM was no longer asking laid-off workers to sign away their right to complain about age bias so, the companyԒs lawyers told the EEOC, the disclosure requirement in the 1990 amendments to the age act no longer applied.

Critics say the companys argument is hard to square with the statuteҒs clear requirements.

You have a law that says older workers being laid off need this information and employers are obligated to provide it. You have a company thatҒs not providing it, said David Lopez, the former general counsel for the EEOC. ӒHow can this not be undercutting the intent of the law?

In their relationships with both workers and customers, American corporations are making increasingly heavy use of arbitration, contending the process is fair and saves all parties time and legal costs. The Supreme Court has repeatedly expanded the right of companies to require that disputes be settled by arbitrators rather than judges.

When it comes to employment claims, studies have found that arbitrators overwhelmingly favor employers. Research by Cornell University law and labor relations specialist Alexander Colvin found that workers win only 19 percent of the time when their cases are arbitrated. By contrast, they win 36 percent of the time when they go to federal court, and 57 percent in state courts. Average payouts when an employee wins follow a similar pattern.

Given those odds, and having signed away their rights to go to court, some laid-off IBM workers have chosen the one independent forum companies canԓt deny them: the U.S. Equal Employment Opportunity Commission. Thats where Moos, the Long Beach systems security specialist, and several of her colleagues, turned for help when they were laid off. In their complaints to the agency, they said theyԒd suffered age discrimination because of the companys effort to Ғdrastically change the IBM employee age mix to be seen as a startup.ғ

In its formal reply to the EEOC, IBM said that age couldnt have been a factor in their dismissals. Among the reasons it cited: The managers who decided on the layoffs were in their 40s and therefore older too.

Tilting the Table

Whether IBM is staying within U.S. age laws as it cuts from and adds to its workforce turns largely on how and why the company chooses individuals to be eliminated. While executives say they never target older workers, internal company documents and interviews suggest otherwise.

Consider, for example, a planning presentation that former IBM executives said was drafted by heads of a business unit carved out of IBMŔs once-giant software group and charged with pursuing the C,Ғ or cloud, portion of the companys CAMS strategy.

The presentation laid out plans for substantially altering the unitӔs workforce. It was shown to company leaders including Diane Gherson, the senior vice president for human resources, and James Kavanaugh, recently elevated to chief financial officer. Its language was couched in the argot of resources,Ғ IBMs term for employees, and ӔEPs,ғ its shorthand for early professionals or recent college graduates.

Among the goals: Shift headcount mix towards greater % of Early Professional hires.Ҕ

Among the means: “[D]rive a more aggressive performance management approach to enable us to hire and replace where needed, and fund an influx of EPs to correct seniority mix.”

Among the expected results: [A] “significant reduction in our workforce of 2,500 resources.”

A slide from a similar presentation prepared last spring for the same leaders called for re-profiling current talentӔ to create room for new talent.Ӕ Presentations for 2015 and 2016 for the 50,000-employee software group also included plans for aggressive performance managementӔ and emphasized the need to maintain steady attrition to offset hiring.Ӕ

IBM declined to answer questions about whether either presentation was turned into company policy. The description of the planned moves matches what hundreds of older ex-employees told ProPublica they believe happened to them: They were ousted because of their age. The company used their exits to hire replacements, many of them young; to ship their work overseas; or to cut its overall headcount.

Ed Alpern, now 65, of Austin, started his 39-year run with IBM as a Selectric typewriter repairman. He ended as a project manager in October of 2016 when, he said, his manager told him he could either leave with severance and other parting benefits or be given a bad job review something he said heӔd never previously received and risk being fired without them.

Albert Poggi, now 70, was a three-decade IBM veteran and ran the companyגs Palisades, New York, technical center where clients can test new products. When notified in November of 2016 he was losing his job to layoff, he asked his bosses why, given what he said was a history of high job ratings. They told me,ג he said, they needed to fill it with someone newer.Ӕ

The presentations from the software group, as well as the stories of ex-employees like Alpern and Poggi, square with internal documents from two other major IBM business units. The documents for all three cover some or all of the years from 2013 through the beginning of 2018 and deal with job assessments, hiring, firing and layoffs.

The documents detail practices that appear at odds with how IBM says it treats its employees. In many instances, the practices in effect, if not intent, tilt against the companys older U.S. workers.

For example, IBM spokespeople and lawyers have said the company never considers a workerӔs age in making decisions about layoffs or firings.

But one 2014 documentreviewed by ProPublica includes dates of birth. An ex-IBM employee familiar with the process said executives from one business unit used it to decide about layoffs or other job changes for nearly a thousand workers, almost two-thirds of them over 50.

Documents from subsequent years show that young workers are protected from cuts for at least a limited period of time. A 2016 slide presentation prepared by the companys global technology services unit, titled ҒU.S. Resource Action Process and used to guide managers in layoff procedures, includes bullets for categories considered ғineligible for layoff. Among them: ԓearly professional hires, meaning recent college graduates.

In responding to age-discrimination complaints that ex-employees file with the EEOC, lawyers for IBM say that front-line managers make all decisions about who gets laid off, and that their decisions are based strictly on skills and job performance, not age.

But ProPublica reviewed spreadsheets that indicate front-line managers hardly acted alone in making layoff calls. Former IBM managers said the spreadsheets were prepared for upper-level executives and kept continuously updated. They list hundreds of employees together with codes like ԓlift and shift, indicating that their jobs were to be lifted from them and shifted overseas, and details such as whether IBMԓs clients had approved the change.

An examination of several of the spreadsheets suggests that, whatever the criteria for assembling them, the resulting list of those marked for layoff was skewed toward older workers. A 2016 spreadsheet listed more than 400 full-time U.S. employees under the heading REBAL,Ԓ which refers to rebalancing,Ӕ the process that can lead to laying off workers and either replacing them or shifting the jobs overseas. Using the job search site LinkedIn, ProPublica was able to locate about 100 of these employees and then obtain their ages through public records. Ninety percent of those found were 40 or older. Seventy percent were over 50.

“IBM frequently cites its history of encouraging diversity in its responses to EEOC complaints about age discrimination. IBM has been a leader in taking positive actions to ensure its business opportunities are made available to individuals without regard to age, race, color, gender, sexual orientation and other categories,” a lawyer for the company wrote in a May 2017 letter. “This policy of non-discrimination is reflected in all IBM business activities.”

But ProPublica found at least one company business unit using a point system that disadvantaged older workers. The system awarded points for attributes valued by the company. The more points a person garnered, according to the former employee, the more protected she or he was from layoff or other negative job change; the fewer points, the more vulnerable.

The arrangement appears on its face to favor younger newcomers over older veterans. Employees were awarded points for being relatively new at a job level or in a particular role. Those who worked for IBM for fewer years got more points than those whod been there a long time.

The ex-employee familiar with the process said a 2014 spreadsheet from that business unit, labeled ӔIBM Confidential, was assembled to assess the job prospects of more than 600 high-level employees, two-thirds of them from the U.S. It included employeesғ years of service with IBM, which the former employee said was used internally as a proxy for age. Also listed was an assessment by their bosses of their career trajectories as measured by the highest job level they were likely to attain if they remained at the company, as well as their point scores.

The tilt against older workers is evident when employees years of service are compared with their point scores. Those with no points and therefore most vulnerable to layoff had worked at IBM an average of more than 30 years; those with a high number of points averaged half that.

Perhaps even more striking is the comparison between employeesԒ service years and point scores on the one hand and their superiors assessments of their career trajectories on the other.

Along with many American employers, IBM has argued it needs to shed older workers because theyҒre no longer at the top of their games or lack contemporaryҒ skills.

But among those sized up in the confidential spreadsheet, fully 80 percent of older employees those with the most years of service but no points and therefore most vulnerable to layoff Ӕ were rated by superiors as good enough to stay at their current job levels or be promoted. By contrast, only a small percentage of younger employees with a high number of points were similarly rated.

No major company would use tools to conduct a layoff where a disproportionate share of those let go were African Americans or women,ח said Cathy Ventrell-Monsees, senior attorney adviser with the EEOC and former director of age litigation for the senior lobbying giant AARP. ThereӔs no difference if the tools result in a disproportionate share being older workers.

In addition to the point system that disadvantaged older workers in layoffs, other documents suggest that IBM has made increasingly aggressive use of its job-rating machinery to pave the way for straight-out firings, or what the company calls Ӓmanagement-initiated separations. Internal documents suggest that older workers were especially targets.

Like in many companies, IBM employees sit down with their managers at the start of each year and set goals for themselves. IBM graded on a scale of 1 to 4, with 1 being top-ranked.
Eroding Protection Under the Law

Older Americans who face discrimination on the job canԓt rely on the courts as much as earlier generations did. Read more.

Those rated as 3 or 4 were given formal short-term goals known as personal improvement plans, or PIPs. Historically many managers were lenient, especially toward those with 3s whose ratings had dropped because of forces beyond their control, such as a weakness in the overall economy, ex-employees said.

But within the past couple of years, IBM appears to have decided the time for leniency was over. For example, a software group planning documentfor 2015 said that, over and above layoffs, the unit should seek to fire about 3,000 of the units 50,000-plus workers.

To make such deep cuts, the documentsaid, executives should strike an Ԓaggressive performance management posture. They needed to double the share of employees given low 3 and 4 ratings to at least 6.6 percent of the divisionғs workforce. And because layoffs cost the company more than outright dismissals or resignations, the documentsaid, executives should make sure that more than 80 percent of those with low ratings get fired or forced to quit.

Finally, the 2015 documentsaid the division should work to attract the best and brightest early professionalsԒ to replace up to two-thirds of those sent packing. A more recent planning document the presentation to top executives Gherson and Kavanaugh for a business unit carved out of the software group Ӕ recommended using similar techniques to free up money by cutting current employees to fund an influxח of young workers.

In a recent interview, Poggi said he was resigned to being laid off. Everybody at IBM has a bullet with their name on it,Ӕ he said. Alpern wasnt nearly as accepting of being threatened with a poor job rating and then fired.

Alpern had a particular reason for wanting to stay on at IBM, at least until the end of last year. His younger son, Justin, then a high school senior, had been named a National Merit semifinalist. Alpern wanted him to be able to apply for one of the companyӔs Watson scholarships. But IBM had recently narrowed eligibility so only the children of current employees could apply, not also retirees as it was until 2014.

Alpern had to make it through December for his son to be eligible.

But in August, he said, his manager ordered him to retire. He sought to buy time by appealing to superiors. But he said the managers response was to threaten him with a bad job review that, he was told, would land him on a PIP, where his work would be scrutinized weekly. If he failed to hit his targets Ғ and his managers would be the judges of that heҗd be fired and lose his benefits.

Alpern couldnt risk it; he retired on Oct. 31. His son, now a freshman on the deanגs list at Texas A&M University, didnt get to apply.

ҒI can think of only a couple regrets or disappointments over my 39 years at IBM,ғ he said, and thatԔs one of them.

Congratulations on Your Retirement

Like any company in the U.S., IBM faces few legal constraints to reducing the size of its workforce. And with its no-disclosure strategy, it eliminated one of the last regular sources of information about its employment practices and the changing size of its American workforce.

But there remained the question of whether recent cutbacks were big enough to trigger state and federal requirements for disclosure of layoffs. And internal documents, such as a slide in a 2016 presentation titled ӒTransforming to Next Generation Digital Talent, suggest executives worried that ԓwinning the talent war for new young workers required IBM to improve the ԓattractiveness of (its) culture and work environment, a tall order in the face of layoffs and firings.

So the company apparently has sought to put a softer face on its cutbacks by recasting many as voluntary rather than the result of decisions by the firm. One way it has done this is by converting many layoffs to retirements.

Some ex-employees told ProPublica that, faced with a layoff notice, they were just as happy to retire. Others said they felt forced to accept a retirement package and leave. Several actively objected to the company treating their ouster as a retirement. The company nevertheless processed their exits as such.

Project manager Ed Alpernԓs departure was treated in company paperwork as a voluntary retirement. He didnt see it that way, because the alternative he said he was offered was being fired outright.

Lorilynn King, a 55-year-old IT specialist who worked from her home in Loveland, Colorado, had been with IBM almost as long as Alpern by May 2016 when her manager called to tell her the company was conducting a layoff and her name was on the list.

King said the manager told her to report to a meeting in Building 1 on IBMԒs Boulder campus the following day. There, she said, she found herself in a group of other older employees being told by an IBM human resources representative that theyd all be retiring. ҒI have NO intention of retiring, she remembers responding. ғIm being laid off.ԓ

ProPublica has collected documents from 15 ex-IBM employees who got layoff notices followed by a retirement package and has talked with many others who said they received similar paperwork. Critics say the sequence doesnt square well with the law.

ҔThis country has banned mandatory retirement, said Seiner, the University of South Carolina law professor and former EEOC appellate lawyer. ғThe law says taking a retirement package has to be voluntary. If you tell somebody Retire or weԓll lay you off or fire you, thatђs not voluntary.

Until recently, the companyҒs retirement paperwork included a letter from Rometty, the CEO, that read, in part, I wanted to take this opportunity to wish you well on your retirement Ԓ While you may be retiring to embark on the next phase of your personal journey, you will always remain a valued and appreciated member of the IBM family. Ex-employees said IBM stopped sending the letter last year.

IBM has also embraced another practice that leads workers, especially older ones, to quit on what appears to be a voluntary basis. It substantially reversed its pioneering support for telecommuting, telling people whoӅve been working from home for years to begin reporting to certain, often distant, offices. Their other choice: Resign.

David Harlan had worked as an IBM marketing strategist from his home in Moscow, Idaho, for 15 years when a manager told him last year of orders to reduce the performance ratings of everybody at his pay grade. Then in February last year, when he was 50, came an internal video from IBMs new senior vice president, Michelle Peluso, which announced plans to improve the work of marketing employees by ordering them to work Ԓshoulder to shoulder. Those who wanted to stay on would need to ғco-locate to offices in one of six cities.

Early last year, Harlan received an email congratulating him on ԓthe opportunity to join your team in Raleigh, North Carolina. He had 30 days to decide on the 2,600-mile move. He resigned in June.

After the Peluso video was leaked to the press, an IBM spokeswoman told the Wall Street Journal that the ԓvast majority of people ordered to change locations and begin reporting to offices did so. IBM Vice President Ed Barbini said in an initial email exchange with ProPublica in July that the new policy affected only about 2,000 U.S. employees and that ԓmost of those had agreed to move.

But employees across a wide range of company operations, from the systems and technology group to analytics, told ProPublica theyԓve also been ordered to co-locate in recent years. Many IBMers with long service said that they quit rather than sell their homes, pull children from school and desert aging parents. IBM declined to say how many older employees were swept up in the co-location initiative.

They basically knew older employees werenԒt going to do it, said Eileen Maroney, a 63-year-old IBM product manager from Aegean, South Carolina, who, like Harlan, was ordered to move to Raleigh or resign. ӒOlder people arent going to move. It just doesnԓt make any sense. Like Harlan, Maroney left IBM last June.

Having people quit rather than being laid off may help IBM avoid disclosing how much it is shrinking its U.S. workforce and where the reductions are occurring.

Under the federal WARN Act, adopted in the wake of huge job cuts and factory shutdowns during the 1980s, companies laying off 50 or more employees who constitute at least one-third of an employerҒs workforce at a site have to give advance notice of layoffs to the workers, public agencies and local elected officials.

Similar laws in some states where IBM has a substantial presence are even stricter. California, for example, requires advanced notice for layoffs of 50 or more employees, no matter what the share of the workforce. New York requires notice for 25 employees who make up a third.

Because the laws were drafted to deal with abrupt job cuts at individual plants, they can miss reductions that occur over long periods among a workforce like IBMs that was, at least until recently, widely dispersed because of the companyԒs work-from-home policy.

IBMs training sessions to prepare managers for layoffs suggest the company was aware of WARN thresholds, especially in states with strict notification laws such as California. A 2016 documententitled ҒEmployee Separation Processing and labeled ғIBM Confidential cautions managers about the ԓunique steps that must be taken when processing separations for California employees.

A ProPublica review of five years of WARN disclosures for a dozen states where the company had large facilities that shed workers found no disclosures in nine. In the other three, the company alerted authorities of just under 1,000 job cuts ԓ 380 in California, 369 in New York and 200 in Minnesota. IBMs reported figures are well below the actual number of jobs the company eliminated in these states, where in recent years it has shuttered, sold off or leveled plants that once employed vast numbers.

By contrast, other employers in the same 12 states reported layoffs last year alone totaling 215,000 people. They ranged from giant Walmart to Ostrom’s Mushroom Farms in Washington state.

Whether IBM operated within the rules of the WARN act, which are notoriously fungible, could not be determined because the company declined to provide ProPublica with details on its layoffs.

A Second Act, But Poorer

ith 35 years at IBM under his belt, Ed Miyoshi had plenty of experience being pushed to take buyouts, or early retirement packages, and refusing them. But he hadnt expected to be pushed last fall.

Miyoshi, of Hopewell Junction, New York, had some years earlier launched a pilot program to improve IBMԒs technical troubleshooting. With the blessing of an IBM vice president, he was busily interviewing applicants in India and Brazil to staff teams to roll the program out to clients worldwide.

The interviews may have been why IBM mistakenly assumed Miyoshi was a manager, and so emailed him to eliminate the one U.S.-based employee still left in his group.

That was me,Ғ Miyoshi realized.

In his sign-off email to colleagues shortly before Christmas 2016, Miyoshi, then 57, wrote: I am too young and too poor to stop working yet, so while this is good-bye to my IBM career, I fully expect to cross paths with some of you very near in the future.Ӕ

He did, and perhaps sooner than his colleagues had expected; he started as a subcontractor to IBM about two weeks later, on Jan. 3.

Miyoshi is an example of older workers whove lost their regular IBM jobs and been brought back as contractors. Some of them Ӕ not Miyoshi became contract workers after IBM told them their skills were out of date and no longer needed.

Employment law experts said that hiring ex-employees as contractors can be legally dicey. It raises the possibility that the layoff of the employee was not for the stated reason but perhaps because they were targeted for their age, race or gender.

IBM appears to recognize the problem. Ex-employees say the company has repeatedly told managers җ most recently earlier this year not to contract with former employees or sign on with third-party contracting firms staffed by ex-IBMers. But ProPublica turned up dozens of instances where the company did just that.

In making these cuts, IBM has flouted or outflanked U.S. laws and regulations intended to protect later-career workers from age discrimination, according to a ProPublica review of internal company documents, legal filings and public records, as well as information provided via interviews and questionnaires filled out by more than 1,000 former IBM employees.

With nearly 400,000 people worldwide, and tens of thousands still in the U.S., IBM remains a corporate giant. How it handles the shift from its veteran baby-boom workforce to younger generations will likely influence what other employers do. And the way it treats its experienced workers will eventually affect younger IBM employees as they too age.

Fifty years ago, Congress made it illegal with the Age Discrimination in Employment Act, or ADEA, to treat older workers differently than younger ones with only a few exceptions, such as jobs that require special physical qualifications. And for years, judges and policymakers treated the law as essentially on a par with prohibitions against discrimination on the basis of race, gender, sexual orientation and other categories.

In recent decades, however, the courts have responded to corporate pleas for greater leeway to meet global competition and satisfy investor demands for rising profits by expanding the exceptions and shrinking the protections against age bias.

גAge discrimination is an open secret like sexual harassment was until recently, said Victoria Lipnic, the acting chair of the Equal Employment Opportunity Commission, or EEOC, the independent federal agency that administers the nationԓs workplace anti-discrimination laws.

Everybody knows itԒs happening, but often these cases are difficult to prove because courts have weakened the law, Lipnic said. ӒThe fact remains its an unfair and illegal way to treat people that can be economically devastating.ԓ

Many companies have sought to take advantage of the court rulings. But the story of IBMs downsizing provides an unusually detailed portrait of how a major American corporation systematically identified employees to coax or force out of work in their 40s, 50s and 60s, a time when many are still productive and need a paycheck, but face huge hurdles finding anything like comparable jobs.

The dislocation caused by IBMҔs cuts has been especially great because until recently the company encouraged its employees to think of themselves as IBMersҒ and many operated under the assumption that they had career-long employment.

When the ax suddenly fell, IBM provided almost no information about why an employee was cut or who else was departing, leaving people to piece together what had happened through websites, listservs and Facebook groups such as Watching IBMӔ or Geographically Undesirable IBM Marketers,Ӕ as well as informal support groups.

Marjorie Madfis, at the time 57, was a New York-based digital marketing strategist and 17-year IBM employee when she and six other members of her nine-person team all women in their 40s and 50s Ӕ were laid off in July 2013. The two who remained were younger men.

Since her specialty was one that IBM had said it was expanding, she asked for a written explanation of why she was let go. The company declined to provide it.
Marjorie Madfis was among seven women in their 40s and 50s laid off from their IBM marketing team in White Plains, New York, in 2013. The two members who remained were younger men. The only explanation is our age,ח says Madfis. (Demetrius Freeman for ProPublica)

They got rid of a group of highly skilled, highly effective, highly respected women, including me, for a reason nobody knows,Ӕ Madfis said in an interview. The only explanation is our age.Ӕ

Brian Paulson, also 57, a senior manager with 18 years at IBM, had been on the road for more than a year overseeing hundreds of workers across two continents as well as hitting his sales targets for new services, when he got a phone call in October 2015 telling him he was out. He said the caller, an executive who was not among his immediate managers, cited performanceӔ as the reason, but refused to explain what specific aspects of his work might have fallen short.

It took Paulson two years to land another job, even though he was equipped with an advanced degree, continuously employed at high-level technical jobs for more than three decades and ready to move anywhere from his Fairview, Texas, home.

ItӔs tough when youve worked your whole life,Ӓ he said. The company doesnҔt tell you anything. And once you get to a certain age, you dont hear a word from the places you apply.Ӓ

Paul Henry, a 61-year-old IBM sales and technical specialist who loved being on the road, had just returned to his Columbus home from a business trip in August 2016 when he learned hed been let go. When he asked why, he said an executive told him to Ҕkeep your mouth shut and go quietly.

Henry was jobless more than a year, ran through much of his savings to cover the mortgage and health insurance and applied for more than 150 jobs before he found a temporary slot.

ғIf youre over 55, forget about preparing for retirement,ԓ he said in an interview. You have to prepare for losing your job and burning through every cent youҔve saved just to get to retirement.

IBMӒs latest actions arent anything like what most ex-employees with whom ProPublica talked expected from their years of service, or what todayԒs young workers think awaits them or are prepared to deal with Ғ later in their careers.

In a fast-moving economy, employers are always going to be tempted to replace older workers with younger ones, more expensive workers with cheaper ones, those whoחve performed steadily with ones who seem to be up on the latest thing, said Joseph Seiner, an employment law professor at the University of South Carolina and former appellate attorney for the EEOC.

ӒBut its not good for society,ԓ he added. We have rules to try to maintain some fairness in our lives, our age-discrimination laws among them. You canҔt just disregard them.
ӒOld Heads Neednԑt Apply

For much of its history, IBM viewed its fate and that of its predominantly U.S. workforce as inseparable. By the late 1960s, the companys grip on the mainframe computer business had grown so great the Justice Department sued it for monopolizing the industry, a case that dragged on for years before being dropped as Ғwithout merit. Such dominance convinced executives they could deliver extraordinary workplace stability in return for loyal service.

ғWhen recessions occur or there is a major product shift, some companies handle the resulting workforce imbalances by letting people go, explained an employee handbook of the 1980s. By contrast, IBM ԓretrains, reassigns and even relocates employees.

For their part, continued the handbook, employees must be ԓflexible, willing to change, work overtime, and adapt to new situations quickly. The logic behind the bargain was that ԓpeople are a treasured resource. At IBM, ԓthey are treated like one.

But within a decade, IBM had stumbled not once but three times, in ways that would come to cost both the company and its workers. First, it failed to appreciate the ԓmajor product shift behind a new chip technology that first entered peopleԓs lives as the guts of pocket calculators and cheap digital watches and was making possible increasingly powerful and networked personal computers that undercut the companys mainframe business. Second, it misjudged its employeesԒ reaction to switching to a kind of pension that no longer rewarded older, long-service workers. IBM workers responded with a lawsuit that forced the company to settle by paying more than $300 million and reinstating expensive traditional pensions for more than 100,000 of them.

And by the early years of the new century, IBM was falling behind again by failing to quickly devise innovative uses for the internet like its new rivals, Google, Facebook and Amazon. As it slipped, the company began having second thoughts about the price of unbending loyalty to its long-serving workforce.
This excerpt from a 2006 IBM Business Consulting Services paper titled The Maturing WorkforceҒ refers to baby-boomer employees as gray hairsӔ and old heads.Ӕ Read the full report.

In a little-noticed paper issued in 2006 by the London office of one of the companys consulting arms, executives praised boomersӔ experience, but described them as gray hairsҒ and old heads.Ӕ While recognizing that older workers were important to high-tech employers such as IBM, it concluded that successor generations Ӕ are generally much more innovative and receptive to technology than baby boomers.

The paper was subsequently cited in an age discrimination lawsuit in U.S. District Court in Pennsylvania. Before the complaint was settled last year, the plaintiffs alleged in a filing: ӅIBMs Boomer employees ԓ being labeled by IBMs own research as uncollaborative, skeptical of leadership, technologically unsophisticated, less innovative and generally out of touch with IBMҗs brand, customers and objectives were shown the door in droves.Ғ

By the time IBMs current CEO, Virginia הGinni Rometty, took over in 2012, the company had shifted its personnel focus to millennials.

Rometty launched a major overhaul that aimed to make IBM a major player in the emerging technologies of cloud services, big data analytics, mobile, security and social media, or what came to be known inside as CAMS.

At the same time, she sought to sharply increase hiring of people born after 1980.

ғCAMS are driven by Millennial Traits, declared a slide presentation for an invitation-only IBM event in New York in December 2014. Not only were millennials in sync with the new technologies, but they were also attuned to the collaborative, consensus-driven modes of work these technologies demanded, company researchers said theyԓd discovered. Millennials are not likely to make decisions in isolation,Ԓ the presentation said, but instead depend on analytic technologies to help them.Ӕ

By contrast, people 50 or over are more dubiousӔ of analytics, place less stock in the advantages data offers,Ӕ and are less motivated to consult their colleagues or get their buy in Ӕ Its Baby Boomers who are the outliers.Ӆ

The message was clear. To succeed at the new technologies, the company must, in the words of the presentation, become one with the Millennial mindset.Ҕ Similar language found its way into a variety of IBM presentations in subsequent years.

Even before the New York conference, IBM had begun a major effort to recruit millennial employees. It launched a blog, The Millennial Experience,Ӕ and a hashtag on Twitter, #IBMillennial. It began an online and print advertising campaign primarily featuring young people. It established a ӔMillennial Corps, a network of more than 5,000 young IBMers whom Rometty and other top executives said theyԓd regularly consult before making business decisions. And it sharply improved benefits, like parental leave, especially important to younger employees.

Its initiatives won IBM plaudits from womens groups; lesbian, gay, bisexual and transgender organizations; human rights and disability associations; indeed advocates for just about every class of people protected under U.S. equal employment opportunity laws.

And the entire effort was guided by something that then-IBM brand strategist Bill Grady told the 2014 conference: ԒWhats good for Millennials is good for everyone.ғ
Exit Strategy

As IBM trained its sights on younger workers, it also took steps to change the way it dealt with those whod spent many years on the job. It embraced a legal strategy that made it much easier for the company to dismiss older workers, and to do so in ways that minimized legal consequences and largely avoided public attention.

Until 2014, IBM had provided two lists to workers getting laid off. One showed the positions and ages, but not the names, of all the people laid off from their business units at the same time. The other showed the positions and ages of all those staying on. For example, Madfis, the digital marketing strategist, got a list when she was let go in July 2013.

Such lists are common in corporate layoffs, thanks to a disclosure requirement added to the ADEA in 1990. The reason for the new rule was that virtually all employers had begun making severance pay and other parting benefits contingent on a laid-off worker signing away the right to sue the company. Congress wanted to make sure that before employees signed such waivers they understood enough to make Ҕknowing and voluntary decisions about whether they might have been targeted because of their age.

IBM complied with the disclosure requirement for more than two decades. As a result, even when the company stopped disclosing its U.S. employment totals ғ and thus its job cuts the numbers still became known as employees collected and tallied the number of layoffs from lists provided to workers by various company units.
One Departure, Two Letters
Just a few months after receiving a layoff notice, the same employee received a congratulatory letter about retiring.

So after it ran into political flak for its workforce reductions, IBM decided to stop giving out the lists. When Diane Moos, 62, of Long Beach, California, lost her job as a systems security specialist in May 2016, she had no way of knowing how many people had been laid off with her, or their ages.

IBM spokesman Doug Shelton said at the time the company was acting out of concern for its workers who had complained the disclosures ԗinfringed on employee privacy ד even though the lists contained no names.

How did IBM get around the legal requirement for the disclosures? With a move that even critics acknowledge is ingenious.

The companys pre-2014 layoff documents required employees receiving severance to waive all bias claims based on ԗrace, national origin, ancestry, color, creed, religion, sex, sexual orientation, pregnancy, marital status, age disability, medical condition, or veteran status.ғ The new documents deleted ageŔ from the waiver list. In fact, they specifically said employees were not waiving their right when it came to age and could pursue age discrimination cases against the company.

But, the new documents added, employees had to waive the right to take their age cases to court. Instead, they had to pursue them through private arbitration. Whats more, they had to keep them confidential and pursue them alone. They couldnӔt join with other workers to make a case.

With the new documents in place, IBM was no longer asking laid-off workers to sign away their right to complain about age bias so, the companys lawyers told the EEOC, the disclosure requirement in the 1990 amendments to the age act no longer applied.

Critics say the companyҒs argument is hard to square with the statutes clear requirements.

ҒYou have a law that says older workers being laid off need this information and employers are obligated to provide it. You have a company thats not providing it,ғ said David Lopez, the former general counsel for the EEOC. How can this not be undercutting the intent of the law?Ҕ

In their relationships with both workers and customers, American corporations are making increasingly heavy use of arbitration, contending the process is fair and saves all parties time and legal costs. The Supreme Court has repeatedly expanded the right of companies to require that disputes be settled by arbitrators rather than judges.

When it comes to employment claims, studies have found that arbitrators overwhelmingly favor employers. Research by Cornell University law and labor relations specialist Alexander Colvin found that workers win only 19 percent of the time when their cases are arbitrated. By contrast, they win 36 percent of the time when they go to federal court, and 57 percent in state courts. Average payouts when an employee wins follow a similar pattern.

Given those odds, and having signed away their rights to go to court, some laid-off IBM workers have chosen the one independent forum companies cant deny them: the U.S. Equal Employment Opportunity Commission. That’s where Moos, the Long Beach systems security specialist, and several of her colleagues, turned for help when they were laid off. In their complaints to the agency, they said they’d suffered age discrimination because of the company’s effort to drastically change the IBM employee age mix to be seen as a startup.

In its formal reply to the EEOC, IBM said that age couldn’t have been a factor in their dismissals. Among the reasons it cited: The managers who decided on the layoffs were in their 40s and therefore older too.

Tilting the Table

Whether IBM is staying within U.S. age laws as it cuts from and adds to its workforce turns largely on how and why the company chooses individuals to be eliminated. While executives say they never target older workers, internal company documents and interviews suggest otherwise.

Consider, for example, a planning presentation that former IBM executives said was drafted by heads of a business unit carved out of IBM’s once-giant software group and charged with pursuing the OC, or cloud, portion of the company’s CAMS strategy.

The presentation laid out plans for substantially altering the unit’s workforce. It was shown to company leaders including Diane Gherson, the senior vice president for human resources, and James Kavanaugh, recently elevated to chief financial officer. Its language was couched in the argot of resources, IBM’s term for employees, and EP’s, its shorthand for early professionals or recent college graduates.

Among the goals: “Shift headcount mix towards greater % of Early Professional hires.”

Among the means: “[D]rive a more aggressive performance management approach to enable us to hire and replace where needed, and fund an influx of EPs to correct seniority mix.”

Among the expected results: “[A] significant reduction in our workforce of 2,500 resources.”

A slide from a similar presentation prepared last spring for the same leaders called for “re-profiling current talent” to “create room for new talent.” Presentations for 2015 and 2016 for the 50,000-employee software group also included plans for “aggressive performance management” and emphasized the need to “maintain steady attrition to offset hiring.”

IBM declined to answer questions about whether either presentation was turned into company policy. The description of the planned moves matches what hundreds of older ex-employees told ProPublica they believe happened to them: They were ousted because of their age. The company used their exits to hire replacements, many of them young; to ship their work overseas; or to cut its overall headcount.

Ed Alpern, now 65, of Austin, started his 39-year run with IBM as a Selectric typewriter repairman. He ended as a project manager in October of 2016 when, he said, his manager told him he could either” leave with severance and other parting benefits or be given a bad job review” something he said hed never previously received - and risk being fired without them.

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Posted by Elvis on 03/22/18 •
Section Dying America • Section Workplace
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