Workers being terminated at IBM (NYSE: IBM) have not found some information that has been included in previous separation agreements:

The ages, positions and the overall number of people being laid off in their various work groups.

Some employees and the union seeking to represent IBMers have cried foul.

However, an employment lawyer says IBM is not legally obligated to disclose the data.

A 35-page document given the workers affected across the U.S. as part of the “resource action” as IBM calls layoffs includes a specific reference stating that IBM is not seeking a waiver of claims under the Federal Age Discrimination in Employment Act, or ADEA.

Some IBM workers had questioned whether the Older Workers Benefit Protections Act, or OWBPA, required disclosure of certain information. The OWBPA modified the ADEA, which is designed to help prevent discrimination on the basis of age.

Under the OWBPA, an employer must satisfy specific requirements before obtaining a valid waiver of claims under the ADEA, including disclosing the job titles and ages of certain employees, according to attorney Jeremy R. Sayre of Ward and Smith, P.A. in Raleigh, N.C.


WRALTechWire coverage of IBM layoffs:

  • IBM doesn’t disclose data included in past resource actions.
  • Strike against IBM-Lenovo deal continues in China.
  • IBMers’ emotions mixed as layoffs begin in U.S.
  • IBM layoffs first reported in India; workers stunned.

No Waiver, No Data

Since IBM did not seek a waiver from possible claims that could be filed under the ADEA, Sayre says the company is within its rights not to spell out work group information. 

“They clearly made a decision not to seek a waiver of claims under the ADEA,” Sayre told WRALTechWire. “They are not attempting to obtain a waiver, not releasing themselves from any claims under the federal age discrimination laws.”

Sayre reviewed an RA document at the request of WRALTechWire, which had obtained a copy.

“It likely had an age waiver in it,” Sayre said, referring to previous RA documents that listed all members of work groups of all size, from 10 to hundreds, by their age. While names aren’t included, Sayre said that personal information published about a particular group of employees could upset some concerned with privacy.

“In today’s society, disclosing any personal information can be a sensitive matter. I consider that personal information,” he said of age.

“In fairness to IBM, as a general rule employers are not going to disclose any private information about an employee.”

IBM Defends Decision

In response to an inquiry about the matter from WRALTechWire, IBM corporate spokesperson Doug Shelton pointed out: “IBM complies with all applicable laws, in all aspects of its business.”

Lee Conrad, national coordinator for Alliance@IBM, the Communications Workers of America affiliate seeking to represent IBM workers, says the union is exploring IBM’s decision with its own laywers.

IBM cited privacy concerns as a reason for not including age and numbers.

“Your observation is correct, age [and] title is not in the packets,” Shelton told WRALTechWire when asked about the RA document changes last week.

“IBM is addressing concerns raised by employees that the age/title information IBM previously provided infringed on employee privacy,” he explained. “Based on this privacy concern, IBM has removed that data from packets.”

The RA reports did offer some transparency into IBM layoff actions. News media, for example, used the numbers and other information for stories about job cuts.

“This information had been given to employees in the past, and we saw what happens – essentially it is published for all the world to see,” Sayre explained. “Folks need to understand that it is not a legal requirement for IBM to provide this information.”

By not seeking a waiver of age claims, IBM also was able to simplify and speed up the resource action process, he added.

IBM stated in January that it would spend $1 billion as part of a resource action that would be completed by March 31.

Workers laid off last week were told their last day would be in March. They were given time to review the resource action document, which recommends that employees have it reviewed by an attorney before signing.

Union Criticizes Decision

Alliance@IBM criticized the decision when disclosed last Thursday.

“For IBM to say not listing age/title/number selected is out of concern for the privacy of employees is absurd,” said Conrad, a retired IBMer and national coordinator of the union.

“We were given this information freely by employees with the sole purpose of breaking the secrecy of IBM job cuts.

“Employees who were terminated understood how important this information was to their co-workers, their communities and to the media.”

Alliance@IBM and news outlets, including WRALTechWire, have used the documents in the past to calculate numbers of layoffs and for other information, such as layoffs broken down by job titles and age.

IBM seldom formally discloses layoff numbers.

“This is just another attempt by IBM to hide the number of cuts taking place and the continued destruction of the IBM employee population in the US. Federal and State governments should look into this and demand transparency or tell IBM no more tax breaks,” Conrad said.