You've got (Ginni's) mail! Judge orders IBM to cough up CEO, execs' internal memos in age-discrim legal battle IBM was ordered late on Friday to produce communications from CEO Ginni Rometty and other executives related to Operation Baccarat, the IT giant's alleged company-wide-plan to replace older workers with younger ones. The ruling [PDF], issued by Andrew W. Austin, a federal magistrate judge in Austin, Texas, pertains to a …
"This case is about whether IBM was careful enough to avoid a paper trail or email trail."
Indeed!
Everyone knows that if you're going to do something you shouldn't you need to use a private email server.
That way if anyone comes asking silly questions you can simply BleachBit the hard drives.
/s?
Sorry Mate, have to down vote.
IBM will lose, not because they have almost mastered the art of being gits but because you can't hide what's found in negative space.
The absence of a paper trail is just as damning when you include other evidence that they can't hide.
Even if they pulled a Clinton and destroyed emails... it will still show up.
... and, the criteria by which they make those decisions.
And that criteria is "eliminate the most expensive employees" which as far as I understand is legal in the US. I'm sure it's simply Pure Chance(tm) that the most expensive workers tend to be older, with more time on the job, therefore more highly paid and with larger share of benefits and employment costs like health insurance.
As an example, imagine Specialist A who costs 150k per year (salary and benefits), Spec B only 30k ... A is an American employee with 10 years on the job and just happens to be over age 40, B is in Romania or Brazil or one of Big Blue's other 'offshore' centers, been working for 5 years and just happens to be under the age of 30. Who keeps their job with Big Blue has never been a matter of who has appropriate skills and knowledge.
” And that criteria is "eliminate the most expensive employees"“
I don’t even think that is the primary reason. It’s more to do with flexibility and adaptability - IBM wants employees who embrace change and are comfortable with continually having to adapt.
Many older workers have found a ‘system’ that works for them - they’re used to it, comfortable with it, and know how to deliver results in it. Change means starting again, and I’m too old for that sh*t.
Hence IBM’s decision to move them out rather than continually having to overcome resistance.
@Sir Awesome: "If your working processes are changing that often,..."
That was my IBM experience,.... we'd get cascaded emails congratulating someone we'd never heard of taking over a role we didn't know existed from someone we never communicated with, then said person would flex their new found power and re-badge or re-brand something, split or combine some geographical regions, introduce some fad we all had to get on board with,... and nothing significant would change, just the buzzwords, 10/10, Lean, GDF, was it 'Rhythm and Blues', some nonsense like that, pointless change for the sake of it.
"pointless change for the sake of it"
No, it was change to make it look like they were doing something. They can't come in and just say "Seems like everying is working ok, just carry on then". They have to make a change so that they can been seen to be having an impact, even though that impact is all too often negative.
I had similar thoughts.
If I take a group of 100 people and 60 of them are over 40, and I lay off every second person then on average 60% of the layoffs are going to be people over 60 even though age wasn't a consideration in the selection - though the actual percentage could be anywhere from 20% to 100% depending on how the list is sorted. Correlation does not imply causation, and there is a huge margin of error in those numbers.
I'm not saying that this is the case, but there are any number legitimate reasons why older, more experienced staff may be reduced. For example, they need more DOERS and less managers, and since an employee's career path tends to take them into management positions then those more experienced employees will be the ones to get the axe. Or those more experienced employees may not have kept up with the latest trends and technologies, and feel that they needed to outside to get the skill set they wanted. Or automation has lead to needing less people to do the same amount of work, so the most expensive people get the axe.
I'm not saying that such cuts would be moral or ethical, just that they could be seen as legitimate business reasons that wouldn't use employee age as a selection criteria.
That said, I'm certainly not opposed to discovery so that the court can expose exactly what criteria were used in the elimination of the plaintiff - facts are always good, and they may certainly back up his claims. It doesn't bode well for IBM to try to avoid it.
At the same time, I can see IBM wanting to hold discovery down to the documents surrounding just the single employee's termination so that they don't have to adjudicate every layoff that they have ever had in every division of the corporation worldwide, and that is what the plaintiff seems to have originally requested.
So, what do you call replacing these older employees with younger ones? IBM isn't laying these people off for profit margin, they are replacing these people with lower cost and lesser experienced people. They effect of this a staff with less to no experience working with the technology to create or support anything. I have seen this first hand from an IBM-taken-over IT department.
"And that criteria is "eliminate the most expensive employees" which as far as I understand is legal in the US. I'm sure it's simply Pure Chance(tm) that the most expensive workers tend to be older, with more time on the job, therefore more highly paid and with larger share of benefits and employment costs like health insurance."
And the other reason older employees are expensive is they have experience and know what they are doing. However IBM believes that everyone (except executives) are interchangeable, so getting rid of the people who know what they are doing, and are therefore not just out of uni, can be simply replaced by those who are younger, offshore, know nothing actually useful (no matter how clever) and are therefore cheap.
Anon 'cos I was shown the aged door not too long ago by IBM. Fortunately for me, just before they stopped giving any noticable benefits to their victims.
"IBM makes its hiring decisions based on skills and business demands, not on age"
It's just that your needed "skill" is passing off as underaged at the local bar, and the business demands are to have worker-level employees who are too young to know any better, and will put up with IBM's crap. (of course, the age rule doesn't apply to upper management).
Actually, that's where IBM is making their mistake; they *SHOULD* be getting rid of all the older employees, all the ones at the top of the hierarchy.
"Looks like IBM has hired lawyers in its own image."
IBM's lawyers have always been formidable - their technology has had peaks and troughs but you only mess with IBM's lawyers if you have a lot of money to burn, as either a customer or an employee.
If they can't beat you legally, they'll exhaust your endurance.
NOT hiring people over "an age", or laying them off because (primarily) of their age, is strictly illegal. Of course we knew that already.
(any other "age-related" "experience-related" wage arguments probably already made; Capt. Obvious things so)
But with THAT being said, perhaps it would be better for older employees (who typically earn more for 'being there' longer) to consider voluntary pay cuts in lieu of being laid off? At least it gives you some time to look for new work without having to be UNEMPLOYED...
Personally (on the management side) I'd rather tie wages directly to PRODUCTIVITY, whenever that's possible. If that is the case, just be honest with people who's wage-to-productivity ratio isn't so hot... (and THAT becomes the criteria for layoffs).
Then you're not AGE discriminating at all, as the wage-to-producttivity ratio it becomes a truly fair measurement of your worth at the company.
/me is an old guy, and I try to be THE most productive employee on site (or off site, same idea), whenever possible, as a contractor. It's a matter of PRIDE, if nothing else.
"Personally (on the management side) I'd rather tie wages directly to PRODUCTIVITY, whenever that's possible. If that is the case, just be honest with people who's wage-to-productivity ratio isn't so hot... (and THAT becomes the criteria for layoffs)."
In any business the size of IBM this is nearly an impossible task that results in a compensation plan that is purely based on some committee's scheme of measuring productivity. Over 36 years I witnessed many attempts to measure productivity all of which failed by the second year after implementation because the "measure-ees" were far better at math that the plan builders and "measure-ers" by finding ways to double count positives. It finally occurred to corporate executives that worker payroll costs were diminishing profits.
In 2004 after years of somewhat lucrative "separation packages" for employees near to or illegible for retirement, the finance people took over the "services division." They immediately took action to correct the problem that IBM's hourly rates were no longer competitive. That resulted in most of the top two tiers of consultants and specialists being adjusted one level down with appropriate reductions in pay if so indicated. This was NOT an option to voluntarily work for less money but an authoritarian fiat the result of which was the loss of nearly all of the most experienced and skilled employees by year end.
As a stock holder and an ex-employee that had no trouble finding another company that would pay me nearly the same as IBM this was "goodness." To IBM customers, IBM was no longer the company that hired the best, expected them to remain the best and compensated them as the best but had become a company that was the "industry average."
It had become too expensive to have highly skilled experienced employees in a business that had become very competitive. For many years they were able to hide the age discrimination behind downsizing. They seem to have run out of excuses.
As the industry changed survival required that "Big Blue" change as well. It's sad but that's capitalism.
I can't downvote you more than once as that's the way this works.
So please don't take it personally if I do what I can: post a dedication for yet another downvote for your post and the ideas behind it.
Anon*
* Because I really would not want you to take it personally.
Am I the only one that reads this as saying they still have no intention of complying with this order?
Quite the opposite. They will comply with the court order. A few options IBM can use to stymie the other side:
1. Redact everything but the white spaces;
2. Bury the documents under mountain of other documents;
3. Buy Tesla solar panels and the documents self-combusted "by accident".
Look, if IBM is trying to "limit" the discovery process, then it is very obvious they've got something to hide.
what documents are passed on to prosecution is not decided by prosecution but by 3rd party, on strict orders to look only for documents related to the case, hardly a "finishing expedition" if the only "fish" you'll get are the ones you have both a quota and permit for
My experience working at Big Blue in the U.K. for years is that young people do want to go there. It’s not a bad name to have on your resume. However they don’t stay which means someone else gets the benefit of the investment the company made in them. One of the problems is that the sorts of things that used to buy loyalty - good retirement packages, strong corporate culture etc - have all gone and IBM is reluctant to pay top dollar to compensate.
finding the emails - no idea about IBM, but a couple of companies I've worked at recently implemented a policy of automatic email and chat transcript deletion after 6 to 9 months - and you were not supposed to save any of that either - IIRC it was said to be "on the advice of lawyers"
I worked at a company that did the same thing for the same reason after discovery in a lawsuit provided emails of people saying and doing just awful things.
The decision was that emails were meant to be messages of the moment, and anything business related should be a immortalized in a document, stored on the network or in a file cabinet, available to users who needed access and subject to retention policies.
A big upside was that it did away with people using their email as a multi GB file cabinet.
But they use Lotus Knots.
Just typing and sending an e-mail is a horrendous ten step process, actually getting the system to delete in bulk and delete all the replications and backups would take someone skilled in the art of maintaining and configuring the gargantuan heap of excrement. Rare skills these days probably belonging to someone you fired six months ago.
It could be that IBMs reluctance to produce the requested eMails is they fired all the old codgers who were skilled enough to extract bulk emails. I doubt if they are suing the company just glad to escape.
Discovery is by its nature somewhat broad and given a global policy would have come from the C-suite rummaging around in their communications is relevant. Trying to narrow it is going to anger any fair mind jurist and raise a strong suspicion that you are hiding something from the court. Not a recipe for winning a case. The quickest way to lose a case is to convince the court you are hiding something even if it is only hinted at in the evidence available.
In my round of RA they used scoring mechanisms that sort to disguise the real motives and criterion of the activity, which as the judge correctly suggests are well publicised, replace older, longer term employees with cheaper millennials, where possible offshore.
Using an artificially high set cut off bar, essentially meaning a single question with a high score, future value to IBM, with employees close to retirement by de facto achieving a lower score, effectively defined which employees remained or were made redundant under HMRC statuary redundancy terms. 14 weeks pay after 30+ years, many in their mid to late 50’s. At a subsequent meeting of RA’d employees in London the similarity of age and seniority profile was remarkable.The local HR / Legal / Management strategy was to use intimidation and/or the risk of long and costly legal processes to prevent individuals challenging the RA selection in court or at employment tribunals on age discrimination terms.
This is now a company that has totally forgotten it’s core principles (respect for the individual etc), whose moral compass is now significantly distorted by a culture of executive bullying initiated and amplified previously by SJP.
As an alumnus (1997-2013) I witnessed what you described.
In my eyes, the big shift in early 2000 to a bigger role by IBM SWG, managed by Steve Mills and his more aggressive methodology was noticed by Sam “All’s Sunny in” Palmisano. Steve pushed the SOFTWARE Group to make more acquisitions, raise the SW maintenance costs of the acquired company, raise software sales quotas regardless of market data (purely based on top down quota driven by meeting Wall St EPS quarterly goals). SJP noticed the fear this generated in SWG and pushed it throughout other parts of the company. All Ginni has done is just follow what SJP started.
With regard to Langley's lawsuit, the technology titan has been trying to limit the discovery process, by which the plaintiff's attorneys can demand internal documents related to the complaint.
Most companies would try to limit discovery in case other things got out so it's not a smoking gun. However when you do this it makes it seem like you have got things to hide.
Seems a tough road to hoe for the plaintiffs to emerge successfully based on the complaint. Between IBMs legacy mainframe installations [read: 90% marketshare] firmly entrenched throughout banking, transportation, finance, healthcare, government sectors, in addition to continuing Service Level Agreements, along with their pivot back to concentrating on new mainframe installations in lieu of SMB server, PC desktop, mobile seems purposefully targeting older experienced workers would be counter to their business interests.
Not that businesses cannot/do not shoot themselves in the foot, but most that survive 100 years, world wars, great depressions, probably not so much.
IBM used to be very good at process.
This is how you make a typewriter. Now go make hundreds of thousands of them.
This is how you make an M1 Carbine Rifle. Now go make millions of them.
This is our mainframe. You run it like this.
However, what they are NOT good at is taking diverse environments and running them effectively. The first thing they will do is try and enforce their own way of running things (which may or may not be compatible with the environment they are tasked to support). What usually happens is the older, more experienced (and more expensive) work force is let go on the premise that any cheap labour (young and/or offshore) can read a manual and do the job. However, the documentation is more often than not lacking or just non-existent.
Technology moves fast - way faster than IBM can keep up with. Most businesses don't even bother to try and keep up (won't invest, too expensive). What you end up with is IBM trying to be at the forefront, with cheap inexperienced labour, trying to maintain old and often undocumented environments whilst trying to convince businesses who don't want to spend money to move to their offerings. That becomes a hard sale, especially if IBM are running a service (badly) for a customer they want to move.
IBM was ordered late on Friday to produce communications from CEO Ginni Rometty and other executives related to Operation Baccarat, the IT giant's alleged company-wide-plan to replace older workers with younger ones.
"ah, but we don't *HAVE* an 'Operation Baccarat', we called it 'Operation Backstab'."
Here's a dumb question since I'm not a lawyer nor an email admin...
Isn't it possible for a company to just deliver an archive of emails that don't happen to contain whatever it is a legal discovery order is looking for? It would seem very easy to just remove messages containing phrases you don't want getting out there. I've worked at places where the workaround for this was to just not keep backups and have all email deleted within 30 days...but even if that were in place, I'd think that some suitably evil company would still selectively deliver "all their email."
There's an interesting article on this whole sordid topic - available on Researchgate (just google "HR Analytics –Workforce Management Initiative and its role in IBM Project Liquid Program").
Here's the abstract: "IBM is constantly restructuring its workforce according to the changes in business and work environment. The company’s HR Organization has played a significant role in its transformation from a troubled computer manufacturer in the 1990s to a prosperous software and consulting services company. IBM had been successfully utilizing the workforce analytics tools and technologies internally within their organization but also has been selling the same to their clients successfully. With the emergence of new technologies like cloud computing, social media, collaborative tools and technologies and data analytics, the way businesses run their organizations and operations have changed significantly forcing business organizations adopt new business models. IBM launched a new program called Project Liquid in which it is replacing permanent employees with temporary/contract workers who will be hired flexibly as required and paid accordingly. The case study provides a detailed view about the current HR Organization set up in IBM, HR metrics and Workforce analytics that have been successfully implemented and integrated into organization strategy, and the new strategy of flexible staffing that is expected to be implemented in near future. This case study helps to discuss the changing work environment and how organizations should adapt to changes successfully."
I worked for IBM for 40 years and was in management for my last 30 years. When I joined IBM it was universally acknowledged to be the greatest company in the world. It was highly respected for being ethical and trustworthy. It was considered one of the very best companies to work for. It cared about all it's employees.
Before laying off my entire team three years ago, I was instructed by my Vice President to move one person (35 years old) to another job. When I question my VP as to why, he told me it would be "very detrimental" to the 35 year old employee's career not to take another internal job offer. The 35 year old took the other IBM position. A majority of my remaining team had much better skills and performance reviews that the 35 year old. Two months later my entire team was laid off. I found out I was also layed off when I read the eMail instructing me to fire all the remaining employees, on my team. They were all over 50 years of age.
I don't know who coined the phrase ..... "This is not your father's IBM", but it most accurate describes IBM today. It is untrue and lacks moral fiber from the very top of it's business on down. Probably a major reason why the stock is performing so miserably in a bull market.
IBM in the '90s and '00s was slapped on the wrist for cabinizing (Judge's term above) their layoffs so they didn't have to inform either the state or the feds if the number of people in a layoff went above the threshold defined by the law where the company had to give either 45 or 60 day notice to the government. What IBM did was to spread the lay offs across multiple business units and didn't report the layoffs to the government agency in charge. IBM used the argument that the layoffs in any state didn't exceed the specified reporting threshold. The state in one case told IBM it didn't care what the individual business unit did, the law referred to the corporation and if the total numbers of layoffs exceeded the lawful threshold in any state or in the country, it had to be reported. Some penalty occurred, don't remember what. However, since this is at least the second time, this should be deemed willful and IBM should be sanctioned for this behavior.
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