▶ 0:21:39>> the special committee on aging will now come to order. We are proud of the hard part -- by person history and today's hearing will be led by ranking member gillibrand. >> chairman scott, thank you so much for providing me the ability to discuss age discrimination and thank you to our witnesses for being here today, providing for the rights of older americans and families.
▶ 0:22:08You all know what it can be like to spend a lifetime working hard, building your career and contribute to our economy. And you can imagine how devastating it could be to experience discrimination because of how old you are. Nobody wants to feel like the contributions don't matter, especially not because of some arbitrary characteristic like age. But far too often, older workers are being denied employment, passed over for promotions or even fired because of their age.
▶ 0:22:39According to research conducted by aarp, 64% of workers aged the plus have seen or -- 50 plus have seen or experienced something of age discrimination in the workplace and of that population 90% believe that age discrimination against older workers is commonplace in the workplace. More than one in five americans said they worried they would be pushed out of their job because of their age.
▶ 0:23:07This comes as americans that started working later in life with workers who are over 75 years old becoming the fastest growing age group in the workforce. Just as the U.S. senate. In a timely population of older americans is growing and many are returning to the workforce, we need to make sure that those who face age discrimination can have their day in work.
▶ 0:23:32Victims of age discrimination often can't seek justice or accountability in court because of force arbitration clause that they signed when they were hired. Many employees are not even aware that their employment contract contained a force arbitration clause. It traps those with experience workplace discrimination in a system that advantages their employer, preventing them from seeking information they could prove their case.
▶ 0:23:59And victims are left at the hands of an extradition arbitrator who was often selected by the employer and not always a trained lawyer. It's no surprise that employees are often less likely to win at arbitration than they are in court, building on our successful effort to ban arbitration sexual harassment and sexual assault.
▶ 0:24:22Senator lindsey graham and I introduced the protecting older americans act which would invalidate arbitration clauses in aces of age discrimination as well. It would also allow those who have experienced age discrimination the option to file their case in court if they choose, even if they previously signed a force arbitration clause. It gives them a voice in the process and the ability to seek justice. If employees decide that they would like to pursue arbitration , they can.
▶ 0:24:52The point is that employees will now have this fundamental choice. The crux of the issue is that despite the fact that workplace age discrimination is categorically illegal and that congress has already passed laws to protect older americans from it, force arbitration clauses subvert justice. They take away your constitutional right to a jury without you knowing about it. They allow employers to hide illegal conduct behind closed doors.
▶ 0:25:23They shield those who have committed serious misconduct from those -- the public eye. But now we have been option for broad bipartisanship at a time when many americans feel congress is too divided to get things done. I look forward to hearing from people today as well as discussing these critical issues. >> thanks, everybody, for being here.
▶ 0:25:47Gathered to discuss a very important topic not just for the aging community, but for those who will be retiring for several decades. Today's hearing will focus on the value of older americans in the workplace. All we can do is elect officials to foster a purpose filled life for aging constituents.
▶ 0:26:06I look forward to a discussion today on how we fight against age discrimination by highlighting the positive impact of older american engagement in their communities and how aging americans remain engaged create benefits for themselves and our economy. I want to be clear about something, age discrimination is clearly wrong. It is stupid. Looking at someone age instead of the value they bring to the organization actually makes zero cents.
▶ 0:26:33We need to make sure it doesn't start happening to any american senior. Work provide purpose and fulfillment. These are powerful forces that enrich families, strengthen communities, support health and longevity of a nation and its people. Having purpose has long been an indicator of mental and physical well-being across all ages. Older adults who remain engaged experience greater physical health, resilience, and life satisfaction.
▶ 0:27:02Employing older americans is good for businesses because these folks have years of wisdom and a valuable perspective on issues. Leaders in business each and every day. Clearly not every older american wants to stay in the workforce. Finding purpose will be different for each person. For some, it will be taking a class or course or dedicating time to -- pursue a new hobby. For many, purpose will be found in continuing to work in some capacity.
▶ 0:27:33This could be in the previous business as a new employee, a place they enjoy frito-lay or even branching out and starting something new. We need to make sure americans of all ages have the opportunity to work and pursue their dreams by stopping age discrimination and removing the red tape and barriers that discourage older americans from continuing to work or starting a new business. We did this in florida when I was governor. We cut taxes.
▶ 0:28:00Cutting taxes, unnecessary regulations, we managed to turn the economy around for those who lived a full and purposeful life. We cut taxes more than 100 times and cut the time it took to get your license.
▶ 0:28:19Florida businesses added 1.7 million jobs, increase the efficiency of government by additional services for citizens and as a result, many seniors moved to florida because there were clearly better business opportunities there. Because of these policies, florida is well-known as a place that bound the retirees flock to each and every year, escaping financially inhospitable climates. Some to retire, some to start businesses.
▶ 0:28:49Opportunities to experience connection. I want to thank my colleague ranking member gillibrand for opus on this topic and I look forward to a productive and meaningful conversation. >> I want to introduce our first witness, nancy leamond. Mrs.
▶ 0:29:10Leamond serves as the chief advocacy and engagement officer for aarp on behalf of the americans 50 plus and their families. In this capacity she leads the arp legislative campaigns, manages public education, volunteers with multicultural outreach and engagement. Thank you, you may begin. >> members of the committee, thank you for the opportunity to testify today.
▶ 0:29:38Mrs. Leamond: As she said, my name is nancy leamond and I serve as chief advocacy and engagement officer of aarp. On behalf of the 100 million americans aged 50 and over, I also want to thank you for working in a bipartisan way to highlight so many issues important to older adults. Hearings like this as well as others including senator scott's recent yield hearing on any fraud help move us toward solutions that will allow americans to age with dignity.
▶ 0:30:10Mrs. Leamond: Today's topic of age discrimination is critically important it is an under discussed an underrecognized issue that has real implications for the growing population of older americans who are working longer than ever before, many because they need to make ends meet. According to the federal reserve survey of consumer finances, 54% of households have no retirement savings. Among those who do, the median savings for folks 55-64 is $185,000.
▶ 0:30:42Mrs. Leamond: It is worth noting that the number for older women, particularly for those who are divorced or never married is significantly lower. As we all know, this number is well below what is needed for a secure retirement, even factoring in social security, and likely one reason that folks 75 and older are the fastest-growing segment of the workforce.
▶ 0:31:04Mrs. Leamond: At the same time, nearly two thirds of workers aged 50 plus telus they seen or experienced age discrimination and 40% of jobseekers over 45 say they faced it looking for work. Research shows that half of workers in their early 50's experienced involuntary job loss and older americans are more likely than their younger peers to be unemployed for six months or longer.
▶ 0:31:31Mrs. Leamond: More than half of older jobseekers report being asked to provide age-related information during the application process, and the algorithms used to to scan resumes and applications can accelerate bias, using graduation dates or years of experience as proxies for age to screen out otherwise qualified candidates.
▶ 0:31:55Mrs. Leamond: Talk to older jobseekers and they will tell you they hear things like you are overqualified, we are looking for a digital native, or a more energetic candidate. This is undermining the financial stability of too many capable americans. It's also economically damaging to our country, aarp keep research showing the age discrimination cost the U.S. economy $850 billion every year.
▶ 0:32:21Mrs. Leamond: Simply put, sidelining experienced workers is also a loss we cannot afford. Congress has the power to help fix this problem. I want to commend senator gillibrand along with senator graham who has introduced the protecting older americans act to end mandatory arbitration in age discrimination claims, a practice that silences workers and denies them the full protection of the law. Aarp is proud to support this common sense law.
▶ 0:32:49Mrs. Leamond: Other bipartisan bills that we think should be considered by congress include the protecting older workers against discrimination act and the protect older job applicants act. Aarp is also working at a state level promoting policies to ban age-related inquiries in the initial hiring process, and to secure funding to help retrain older workers.
▶ 0:33:14Mrs. Leamond: We are partnering with employers to build more age-inclusive workplaces through initiatives like our employer pledge program, which has over 2000 businesses, and we help older americans sharpen their skills to stay competitive. It's going to take in all of the above approach to really make progress. Again, thank you so much for holding this important hearing and for the opportunity to discuss on behalf of older american to ask only for fairness and respect.
▶ 0:33:49Mrs. Leamond: >> thank you very much. Professor horton is the fair business practices and investor advocacy at university of california school of law. Arbitration law and contracts. You may begin.
▶ 0:34:13Mr. Horton: I teach at uc davis in one of my areas of specialty is arbitration. We just heard from nancy about how age disk termination harms older workers and I'm going to talk about forced arbitration compounding those problems. I should say that I believe that arbitration can be valuable. It would allow two businesses to submit a dispute between specialist in their field rather than a general judge.
▶ 0:34:40Mr. Horton: But for two reasons I oppose the fourth arbitration of claims as pernicious and pervasive as age discrimination. First, although arbitration derives its legitimacy from parties consent to bypass the court system, forced employment arbitration is not consensual. Think of some of the wave that employers force employees to arbitrate. Sometimes, they put arbitration provisions in onboarding paperwork but studies confirm what our common sense tells us.
▶ 0:35:11Mr. Horton: At that time workers are bombarded with information, they don't read or understand the fine print and they have no idea that they waived their seventh amendment right to a jury trial. Moreover even if workers did read and understand the fourth arbitration provisions, they would have no choice. Who has the luxury to say no to a job because we don't like the fine print?
▶ 0:35:31Mr. Horton: And it would make no sense to leave a position for another position hoping that it wouldn't be subject to arbitration because statistics show that it is so pervasive that the odds are any other jobs will also be subjected this. Employers often also impose arbitration on people who have been on their payroll for years and even decades. So consider an example from a recent age this termination case. There was a woman named joanne grace who started as a nurse in 1976.
▶ 0:36:01Mr. Horton: It wasn't until 2019 that she took an online training that culminated with her clicking a button saying she agreed to arbitrate any dispute with her employer. A year later a new supervisor was assigned to her who made derogatory comments about her age and ended up firing her and replacing her with a younger worker. So she sued for discrimination but a federal court in ohio compelled arbitration of her claim. It's not true that her consent to arbitration is meaningful.
▶ 0:36:31Mr. Horton: Was she really going to leave a job that she been working at for 50 years over something like forced arbitration? The second reason that employees should not be compelled to arbitrate age discrimination claims is that there are systemic differences between litigation and arbitration that make it harder for plaintiffs to vindicate their rights. For example, employment discrimination often arises at a company my policy, which closeout elective proceedings, but you can't have those in arbitration.
▶ 0:37:02Mr. Horton: Forced employment arbitration also has a reputed playbook. So unlike judges, arbitrators are selected by the parties and paid by the hour. So they have an economic incentive to rule in favor of the only party who is going to be in a position to select or veto them again in the future case. This concern is especially pressing given the rising phenomenon assigning the task of whether or not the process is fair.
▶ 0:37:34Mr. Horton: Three years, the contract doctrine to invalidate arbitration clauses that tried to tilt the scales of justice. The U.S. gated blessing the delegation clauses which allowed arbitrators to decide that issue. If an arbitrator holds that the process is rate, they are taking money out of their old wallets by denying themselves the power.
▶ 0:38:04Mr. Horton: So there is growing empirical evidence that its risk of bias decision-making, it's limited discovery are deterring plaintiffs from pursuing claims. Scholars estimate based on federal and state court subject arbitration clauses that you expect to see between 320 3000 and 727 thousand employment arbitrations every year. Harmony arbitrations are actually filed by employees?
▶ 0:38:37Mr. Horton: The number is 2000 or 3000. So what we know about the prevalence of age discrimination, many of these claims have to be seeking redress under state analogues. For these reasons, although we describe arbitration as alternative dispute resolution, forced employment arbitration is not alternative dispute resolution. It's not an alternative because employees have no choice.
▶ 0:39:04Mr. Horton: It's also not an alternative to anything because it's increasingly the norm and it's not dispute resolution because the purpose isn't to resolve disputes, it is to suppress them. One step in the right direction would be for congress to pass the protecting older americans act. This bill gives workers with agents termination claims what they have been sorely lacking for decades, the freedom to choose a forum in which to seek justice. Thank you again for the opportunity to testify.
▶ 0:39:30Sen. Gillibrand: Thank you so much, appreciate it. I want to move now to our next witness. Mrs. carlson is a former fox news journalist and cofounder of a nonprofit lift our voices, which works to end the silencing of victims to forced arbitration and nondisclosure agreements.
▶ 0:39:49Sen. Gillibrand: Champion of workplace equality, he was named the time magazine 100 most influential people in the world after her bold actions against fox news which not only helped to pave the way for the global metoo movement but with a leading advocate to change the law to eliminate forced arbitration for sexual assault and harassment. You may begin.
▶ 0:40:12Mrs. Carlson: I should know how to do that by now. Chairman scott, I think I've not seen you since we were on fox and friends years together and we were wrestling a baby alligator together. It's great to see you again. We both survive, we did. It was tiny. Ranking member gillibrand, thank you so much for your support on these issues and to the other members of the committee, thank you for the opportunity to be here.
▶ 0:40:38Mrs. Carlson: I'm so encouraged to be able to talk to you about my advocacy with forced arbitration and the work that I've done to make americans so much safer in the work lace. In 2016i somehow found the courage to come forward against then-chairman and ceo of fox news roger ailes for sexual harassment. It was the toughest decision of my life. But after my career that I had killed myself for was taken away from me, thought to myself if I didn't do this, who will?
▶ 0:41:07Mrs. Carlson: My story made headlines around the world, but it could easily have been swept under the carpet because of a forced arbitration clause in my own employment contract. No one starts in job expecting something bad to happen to them. I know I didn't. And in the face of a new opportunity, few people can walk away because of the fine print. I don't care who you are, you don't understand what forced arbitration means.
▶ 0:41:33Mrs. Carlson: In my case it showed up in my last contract with fox and while I asked a lot of questions, I was told not to worry about it because "it was becoming the way of the world." eerily, I had no idea at the time how true that was. Today, more than 60 million american workers are subject to forced arbitration. Most have no idea that signing on the dotted line means they've accepted forced arbitration as their only remedy for justice.
▶ 0:42:02Mrs. Carlson: So after my story I started walking the halls of congress and in 2022, thanks to members of this committee and other champions in congress from both sides of the aisle, the ending forced arbitration of sexual assault and sexual harassment act was signed into law. One of the proudest moments of my life. That meant that kristin tiger, a bartender at a prestigious country club facing harassment, she was able to bring lawsuits since that law passed against her employer last year.
▶ 0:42:32Mrs. Carlson: And even though her employer still tried to compel the forced arbitration clause, the request was denied because of that law. A federal judge in texas also declined to grant immediate motion to dismiss after one of its employees sydney watson also claimed harassment. Watson's case can now also continue in the court of law. Thanks to the new law. But there is still much more work to do.
▶ 0:42:57Mrs. Carlson: Last year and one of the most outrageous stories that you probably heard of, a wife and mom died of an allergic reaction at a disney restaurant after staff confirmed to her that the food was safe. Disney tried to force her husband into arbitration because, get this, he had previously signed a disney+ streaming subscription confirmation email which included a forced arbitration clause.
▶ 0:43:24Mrs. Carlson: Only after enormous public outcry did disney waive the arbitration clause and allow the case to proceed in court. How about our kids? The parents of a 14-year-old girl in california claim she was coerced into sharing graphic images online, both companies trying to force the family into secrecy, meaning other families of this alleged creditor with at least 20 other child victims would never be able to know about it.
▶ 0:43:50Mrs. Carlson: Pertinent to why we are here today, sam casale was promoted seven times as a top sales rep throughout his 24 year career, despite a better sales record than his younger peers, he was forced out and terminated due to a forced arbitration clause he had no ability to seek justice.
▶ 0:44:08Mrs. Carlson: These personal stories are why I'm a champion as well of the protecting older americans act reintroduced today by ranking member gillibrand and senator graham, also cosponsored by the chair and ranking member of the senate judiciary committee, senator chuck grassley and durbin. Too many people are still not getting the simple freedom of choice when something bad happens to them at work.
▶ 0:44:34Mrs. Carlson: Just for a minute about the naysayers out there, we haven't seen with the chamber claimed was going to happen actually passed the efaa, that all hell would break loose and if you let women file their assault and harassment cases in court they would be a slew of new cases everywhere and companies would go out of business. None of that has happened. Instead, we are cleaning up the workplace and getting rid of a few bad apples. I believe the same thing could happen with this bill.
▶ 0:45:02Mrs. Carlson: A close friend said to me after my lawsuit with fox news something good is going to happen from this, gretchen. And I didn't really see it at the time. But something great has happen from this. I thank you for holding this hearing. I hope you will agree this is a bill we can all get behind regardless of politics. Maybe we can all start by agreeing that all of us here today are part of the aged category. Let's take this on it together and I thank you for your time.
▶ 0:45:36Mrs. Carlson: >> thanks to all of you for your testimony. I'd now like to introduce rachel greszler. As a senior research fellow at the heritage foundation, she has been over a decade analyzing issues such as fiscal policy, pensions, and labor policy.
▶ 0:45:59Mrs. Carlson: Before joining heritage in 2013 she served as the senior economist for the joint economic committee of congress for seven years. Her research is marked by a commitment to promoting economic growth, individual freedom and fiscal responsibility. Her expertise for practical, people-focused solutions maker and invaluable research -- asset for sponsored of engagement in later life. Thank you, please begin your testimony.
▶ 0:46:29Mrs. Greszler: Good morning and thank you for the opportunity to be here today. I would like to cover three points. The first is that older americans are increasingly vital contributors to our economy and society. Second, there continued engagement and productive activities provides huge benefits across generations.
▶ 0:46:57Mrs. Greszler: Third, policymakers can and should remove barriers that make it harder for americans to stay engaged in ways meaningful to them and beneficial to society. Today, about one in four americans are aged and that is steadily rising due to longer life expectancies, declining fertility rate, and aging of the baby boomers.
▶ 0:47:20Mrs. Greszler: Moreover, almost a quarter of the labor force is 55 and older, and that has also been rising alongside improvements in health and also more flexible work opportunities. In this continued work it is not just about necessity, but because people find purpose and meaning in it.
▶ 0:47:39Mrs. Greszler: While retirement is often considered a one-time event, we are seeing more older americans choose a transitional retirement, often giving up their full-time job and pursuing part-time employment for independent contracting that provides more flexibility. A recent survey found that 26% of baby boomer professionals and 38% of silent generation professionals engaged in independent work.
▶ 0:48:07Mrs. Greszler: Beyond paid employment, americans make enormous contributions in caregiving and volunteering. For example, 20% of grandparents care for their grandchildren at least once a week. Older americans have the highest volunteer rates in america. Community mentors, church volunteers, and hospice companions. These activities foster strong families and strong communities.
▶ 0:48:31Mrs. Greszler: Moreover, continued engagement, whether paid or unpaid improves older americans' happiness, financial well-being, and also their health. That includes reducing the risk of chronic disease, cognitive decline, and depression. I've seen the benefits of aging employment firsthand. My grandfather after retiring from a long career in the marines started a small business out of his home.
▶ 0:48:58Mrs. Greszler: My father spent decades practicing medicine and then partly retired to spend another decade doing independent medical exams. My mother left her full-time job but still serves as a law guardian for children and also offers her legal services pro bono. And it was because my grandmother cared for me that my older sister -- and my older sister that my mother was able to attend law school.
▶ 0:49:24Mrs. Greszler: Despite all the older american benefits to engage, certain public policies impose obstacles instead of opportunities. One example is social security retirement test. This great depression era of policy was meant to push older americans out of the workforce to free up jobs for younger workers. Today, we need more workers, not fewer. This outdated test functions like an additional 50% tax on social security benefits of workers were under age 67.
▶ 0:49:53Mrs. Greszler: That leads to marginal tax rates as high as 84% on low income older workers. Not surprisingly, this prevents many of them from working as much as they otherwise would. I estimate that eliminating the earnings test could bring up to one million older americans into the workforce. That would reduce poverty, increase incomes and output, and boost federal revenues. All by simply allowing americans to work as much as they would like without a penalty.
▶ 0:50:24Mrs. Greszler: Other barriers come through regulations that restrict work opportunities and make it harder to start a business. For example, the biden administration rule on independent contractors limits flexible job options. In california, a similar rule was found to reduce self-employment by 10.5%. The 21st century worker act in the modern worker empowerment act would free up flexible job opportunities and enable more americans to be their own bosses.
▶ 0:50:55Mrs. Greszler: And for older americans want to start a business, franchise ownership offers a proven business model with less risk and often lower startup costs. But a biden administration rule could upend that model. The save local business act would make it easier for americans to start and grow small businesses. In a package of proposals recently introduced in the health committee, would help make it easier for independent workers to access traditional workplace benefits like retirement savings plans and health insurance.
▶ 0:51:25Mrs. Greszler: In conclusion, everyone benefits when older americans have equal and ample opportunities to stay engaged in work and in society. By removing barriers to work, policymakers can free up opportunities for older americans to contribute to stronger families, stronger communities, and a stronger economy. Thank you. >> thank you all for your testimony.
▶ 0:51:53Mrs. Greszler: Miss carlson, you noted in your testimony that protecting older americans act has bipartisan support. The bipartisan support of this bill reflects a coalition that you've been working on and building to give workers a choice in how they address the discrimination claims. Your organization includes both democrats and republicans as supporters of its goal.
▶ 0:52:16Mrs. Greszler: What are some of the reasons your allies in the movement have given their support to oppose forced arbitration, and anecdotally, what have you seen in terms of momentum for why we should pass this bill now?
▶ 0:52:31Mrs. Carlson: I think it's a variety of different things. I always described this movement at the perfect storm. When I came forward, likely because my lawyers found a way to make my case public even with my fourth arbitration clause or we wouldn't even be having this discussion, that happen and then a tidal wave of other women came forward.
▶ 0:52:52Mrs. Carlson: But what was also essential was that the media started covering the stories, and I can say this is a member of the media that had it been pitched before 2016, it probably would not of been covered. So the media became interested in covering the stories. Social media actually helped because it allowed people to come forward either anonymously or in droves, and suddenly became a worldwide issue.
▶ 0:53:18Mrs. Carlson: But the third thing that really helped this perfect storm happen where people became more educated on these issues is that the american public got mad. Because they thought we had come a lot further along in this process of protecting people at work, whether it is age discrimination, sexual harassment or any other discrimination. Why do they think that? Because they didn't hear about the stories. And why were they not hearing about the stories? Because they were all bound to secrecy of forced arbitration.
▶ 0:53:49Mrs. Carlson: There's been an explosion of the use of force arbitration. In 1991, 2% of all employees were under it. This year, more than 80% will be under it. So the american public got mad. They said wait a minute, I thought we were more equal and fair to all of our workers across this country. And so I think that the education behind this has been crucial where more people are understanding or starting to understand what forced arbitration is, and actually when they find out what it is, they don't like it.
▶ 0:54:20Mrs. Carlson: Last year, lift our voices commissioned a study and more than 70% of all americans when they understand what forced arbitration is, it takes away their choice and their second amendment right, they are against it. And what the study actually found was that the percentages are higher in southern states and higher amongst the most conservative of those surveyed.
▶ 0:54:45Mrs. Carlson: When they understand what it is, right, because you're taking away someone's constitutional right to a jury trial, a jury of their peers to judge an issue and not be shuttered behind closed doors and as you know well, gretchen, and a lot of arbitration clauses are paired with nondisclosure agreements. So you are forced into silence regardless. Mrs.
▶ 0:55:07Mrs. Carlson: Leamond, in your testimony you site an aarp that found age determination draining $850 billion from the U.S. economy every year. This is a shockingly high number. You also cited a study that found 50% of workers in their early 50's experiencing involuntary job loss.
▶ 0:55:28Mrs. Carlson: Can you please go into more detail on the emotional and economic impacts age discrimination has on the older workforce and what is the workforce losing due to age discrimination?
▶ 0:55:42Mrs. Leamond: Both you and the chairman spoke a little about it in your opening remarks. This is devastating for individuals and can be overall for the workforce if we lose this valuable resource. I think everybody on the panel has spoken about it. When you talk about individuals and their families, it has tremendous impact. Rachel mentioned volunteers. No organization is prouder of their volunteers than at aarp, many of whom are here today.
▶ 0:56:12Mrs. Leamond: And when I met with them before walking over, one of them said to me thank you for testifying on this, I have my own story. And that is what I hear everywhere and I'm sure you do as well. The emotional toll of youth -- losing your job, so much of it is your identity, your social group, and so much of it obviously is your income. The ability to be able to have health insurance and protect your family.
▶ 0:56:40Mrs. Leamond: It is all woven and there are stories everywhere, and what we hope and are encouraged by in sessions like this is that we can look at all we can do to help the individual workers and also to help businesses in the country.
▶ 0:56:57Chairman Scott: Meet a furtive senator johnson. >> I will start with a lose lose proposition for me asking this question, but I do think somebody has to bring up the perspective of smaller employers. Nobody wants to see people discriminated against. We are talking about cases against disney and against fox news that are big corporations with plenty of money to do this. I'm talking about the little guy, and we should acknowledge that all people who claim discrimination are not equal.
▶ 0:57:29Chairman Scott: Our plenty of situations and smaller businesses where people claim discrimination falsely. I certainly, and again, I don't know all the laws on arbitration, fourth arbitration vs. I guess voluntary arbitration. What I would not want to see is just a wild west. You said we didn't see an explosion of lawsuits.
▶ 0:57:57Chairman Scott: When I would tell you as a small employer, you fear lawsuits. The only people who win generally are the lawyers. Not the claimant, not the company. So I guess I would be looking more for a middle ground in terms of kimye make arbitration work, can we protect those and again, how do you adjudicate whether it is a valid discrimination suit?
▶ 0:58:24Chairman Scott: I'm just bringing the perspective of small employers who are just screwed by the legal system. I mean, it's awful. There are plenty of feet and take advantage of it. Not all whistleblowers are created equal, not all people claim discrimination. Can you comment on that, can you leave some of my concerns about these bills being proposed?
▶ 0:58:46Mr. Horton: It's a very legitimate concern. One of the things I was most heartened at when I looked at sexual assault and sexual harassment act has been playing out over the last 3.5 years is that there actually does not seem to have been a day lose of lawsuits and certainly not of frivolous lawsuits, although it's not in the text of the statute.
▶ 0:59:09Mr. Horton: Courts have imposed a commonsense limitation requiring sexual-harassment claimants claims to be plausible, which is the general standard for pleading and federal court. And I know that sound -- sound like a low standard but in the case of many, it's actually quite a high standard with the court is inquiring whether or not these facts would actually need the legal text to entitle the plaintiff to be -- >> but it starts as a lawsuit, correct? Is there any middle ground first that it goes to arbitration, what are the steps here?
▶ 0:59:39Mr. Horton: In the case of the ending forced arbitration act, what usually happens is the plaintiff files a complaint in court and then the employer moves to compel arbitration. Then there is some sort of court hearing in which either the court decides whether or not the ending forced arbitration of sexual assault and sexual harassment act applies or not, and that is what happens.
▶ 1:00:07Mr. Horton: So in these cases, courts are evaluating are these frivolous claims or not? And there are about 200 accessible decisions interpreting the the faa. In my knowledge, a very small number of claims have been dismissed as frivolous. So although I completely agree that small businesses are legitimate concern, there is absolutely no evidence that giving workers the right to sue in court is producing a flood of claims that are on meritorious or should not be brought in the first place.
▶ 1:00:37Mr. Horton: >> I'm 70 years old so I'm one of these guys concerned about being discriminated against, but again, employers also have a legitimate concern about their own viability. An older worker who is maybe losing something in terms of being able to drive. How do you address that within the process? >> it's a delicate and important question. What we really need is something that we don't have because of fourth arbitration which is a sense of how these cases actually play out on their merits.
▶ 1:01:09Mr. Horton: I tried to research asia's termination claims in court to prepare for this hearing. It was so hard to find any because they are all sent to arbitration. So I can't tell you whether or not the age discrimination laws should be changed or modified. We just don't know. >> fair enough, thank you, Mr. chairman.
▶ 1:01:29Chair Scott: Thank you all for coming together here. >> Mrs. greszler: >> Mrs. greszler, something you said really stuck out to me. You were talking about the labor workforce and I believe you said something to the effect that participation rates in the labor workforce, individuals aged 55 to 64 increased by 12.8%. Participation rate for those 865 and older increased by 8.3%.
▶ 1:01:58Chair Scott: Are we going to be seeing that trend growing even further as more time passes?
▶ 1:02:07Mrs. Greszler: I think we will continue to see the increasing trend and a lot of it has to do with increased health and also the reduced physical demands of a love the jobs that we have. And also, the aging population, some of those are also policy-related. Some studies have shown that there is additional work capacity beyond what we've already seen. >> thank you. Mrs.
▶ 1:02:32Mrs. Greszler: Leamond, you had something in your opening statement that that 54% of households have no savings, and I think that was of all households, more specifically when it comes to seniors, I saw something put out from a survey last year saying that 20% of adult stage 50+ have no retirement savings and more than half said that they were worried that they don't have enough to be able to support them.
▶ 1:03:00Mrs. Greszler: I guess I just want to ask you if there's any other you want to unpack and is that getting worse as well over time? >> there are additional challenges. People are trying to save in many situations and we find that because of caregiving needs in particular, older workers already in the more time out of the workforce, so we are concerned about that.
▶ 1:03:28Mrs. Greszler: Focused on social security obviously, as some people have that earned benefit when they retire. >> I really want to just put those stamps together. What we hear in congress, we need to focus in on a rising workforce and an aging workforce. But we also have a larger growing level of the workforce that feels significant financial insecurity.
▶ 1:03:55Mrs. Greszler: My mom and dad retired, but they are dependent upon social security for almost all of their income right now. It causes so much challenge in terms of decisions being made. That is something that I really hope he home in on here in this community -- committee. You raised it in your last answer here about the effects that caregiving can play when it comes to these issues.
▶ 1:04:23Mrs. Greszler: I think we are seen this a lot when it comes to combating age discrimination challenges, and it comes to the growing of our workers who are also caregivers and need to be able to take some of their time. Also recognizing the need for businesses to be able to offer benefits and flexibilities that can help with caregiving. I guess I just want to ask if you can talk a little bit more about the intersection between caregiving and age discrimination.
▶ 1:04:47Mrs. Leamond: Sure. Well, we know the report released last week, 63 million family caregivers and 60% of those are in the workforce. So we know this is an issue not just for the caregiver, but for the employer. And we hear anecdotally from workers who are caregivers that they are a little worried about taking time out of work to say they are doing caregiving.
▶ 1:05:15Mrs. Leamond: They think that that might jeopardize their status in the company. We don't have any direct statistics on that. But on the other hand, I mentioned our employer pledge program. This is a voluntary program where employers say they are committed to leveling the playing field and work with us on things they can do.
▶ 1:05:38Mrs. Leamond: And one of the areas we hear about the most from employers right now how do I manage the increased number of workers I have, and not just older workers, workers of all ages who are caregivers, part-time family caregivers. How do I create flexible workforce where they can be productive at work and also continue to be the backbone of the long-term care system in this country?
▶ 1:06:04Mrs. Leamond: I think this is a growing issue and one we will continue to look at as we encourage more companies to hire older workers and we encourage more older workers to stay in their jobs both for their financial support and for their good health and for their family. >> Mr. chairman, if you don't mind, I'd love to ask one more question. Mrs. carlson, we just heard Mr.
▶ 1:06:31Mrs. Leamond: Horton talking about the economic implications of this in terms of businesses and have at least from what we've seen so far, we haven't seen a delucia problems facing businesses when it comes to some of legislation that we passed regarding force arbitration. Got a little bit to this, but I just wanted to offer you another opportunity to delve deeper. Some of my colleagues have raised concerns about whether or not some of these actions that were taken force arbitration would have negative impacts on businesses.
▶ 1:07:02Mrs. Leamond: I for one and very compelled by the responses you've given. I was proud to be able to support and work alongside you to enforce arbitration for sexual harassment, sexual assault. But I wanted to see if there are some further lessons that you've learned from that to help us as we are having these discussions.
▶ 1:07:21Mrs. Carlson: Thank you so much, senator. I think everything we discussed today with regard to the problems of americans aging longer and needing to be in the workforce financially, the underlying message in all of that is we can improve all of those things. Everything that's been discussed. But if you keep the barrier of force arbitration, you are still going to have the biggest problem. We talked a lot about moving the barriers. The biggest failure is the idea that arbitration is being forced on these workers.
▶ 1:07:51Mrs. Carlson: All we are asking for is the choice to make it voluntary, and if force arbitration is so wonderful, why do we use the word forced? We are not saying voluntary. The other thing I would add that it ain't fun to come forward. That's another reason why we haven't seen this dilution of cases -- deluge of cases. It's also very hard to prove these cases at the state level or the federal level.
▶ 1:08:21Mrs. Carlson: Just offering americans the choice is what we are asking for. They may still choose arbitration. But they will know that they have the ability to use their second amendment right. >> thank you for pushing for this legislation and thank you for giving up the opportunity to discuss this. >> I like that you said when you were trying to do your research about this hearing it was very hard to find those cases. Because they are stuck behind the wall of forced arbitration.
▶ 1:08:52Mrs. Carlson: I think that is a huge impact in the legal community to workers rights, and adjust to our knowledge base as a committee. So I want to ask the panel for their examples on what you've seen with age discrimination. Sometimes it can be very subtle. Mrs. leamond, I need a high energy candidate. It's just a way to say I don't want somebody old.
▶ 1:09:19Mrs. Carlson: Or in your industry, you don't see many news anchors that are in their 50's and 60's. You see plenty in their 20's and 30's. There is a preference for youth in many industries, and particularly among women, there's always a joke in hollywood that is soon as you hit 40, you are no longer castable because nobody wants to see you.
▶ 1:09:44Mrs. Carlson: So I'd like to hear from each of you, what are the example that you've heard or seen of age discrimination, what does it look like? When I travel in new york and I talked to workers, I talked to a lot of men were engineers who say as soon as they hit 50, they were therefore a high cost worker whereas they would try to hire a 25-year-old for the same degree because they could pay them half the wages. Even though they are providing so much value and benefit because of their years of experience.
▶ 1:10:14Mrs. Carlson: So I really want to hear more about what does age discrimination look like, and what are the impacts ultimately? You might have some thoughts on this, on the economy and also on jurisprudence. Mrs. leamond, by don't we start with you?
▶ 1:10:32Mrs. Leamond: As I mentioned, what we hear the most is people are told they are over all of five, they just have too much experience for this job, even if they are saying look, I'm interested in this, I think I can do it, I want to be there for it. We also see in the job application process some companies that recruit only on college campuses, where the likelihood of finding older workers is not as great, obviously.
▶ 1:11:01Mrs. Leamond: Some descriptions talk about no more than five years of experience, questions sometimes about different social media sites or podcasts, in an effort to see how able somebody might be with new media. We tend to see all of those kinds of subtle comments. Digital native is very common, we hear that all the time from folks.
▶ 1:11:30Mrs. Leamond: And then in preparation for the hearing, I googled cartoons ageist discrimination, and it was interesting. There was one that said we really can't say anything to direct, but we can put it in really tiny print so an older job applicant can't read it. And I think you kind of get a sense of the subtle jokes about are you going to retire, are you going to still be able to do this, all of them comprise a picture that is discrimination.
▶ 1:12:02Sen. Gillibrand: Yeah. Mr. horton.
▶ 1:12:07Mr. Horton: As I was preparing and doing research I was reminded of the fact that one of the most egregious "facts" in any force arbitration case involved claiming age discrimination because I think it really shows why forced arbitration is a barrier to justice. There was a woman who worked, she had a phd, she was a doctor, and I believe her employer was called into pro.
▶ 1:12:36Mr. Horton: She signed an employment arbitration agreement that said that the arbitrator would decide whether or not the case should go to arbitration, and she suffered age discrimination on the job and she sued, and so the issue facing the court was whether or not to allow the arbitrator to decide whether the arbitration should proceed.
▶ 1:12:56Mr. Horton: He proved that it would cost $8,000 just to decide the issue of whether to arbitrate the merits of her case and so she introduced evidence to show that she simply could not afford access not to actually try her case but to try the issue of that she have to arbitrate?
▶ 1:13:18Mr. Horton: That really made an impression on me because they really highlighted to be the fact that there are people with valid age discrimination claims were being blocked by force arbitration from pursuing them.
▶ 1:13:32Mrs. Carlson: I would just dovetail off of those comments that there was a woman in the financial services the street in new york city is telling me about her story and arbitration supposed to be quicker and cheaper, although the company can always outspend the actual individual, and she had spent $500,000 of her own money and arbitration hadn't even started yet. So that is another barrier. It's not always true that it is cheaper.
▶ 1:14:02Mrs. Carlson: The other thing I would say is that of course age discrimination is rampant in the movie industry. Men get salt-and-pepper hair and they are assessed as being wiser. Women get one wrinkle and they are out. But the problems we are not necessarily hearing about these cases and they are not getting justice because they are forced into arbitration.
▶ 1:14:27Mrs. Carlson: Bringing fairness to millions of americans, specifically about age discrimination, I think that one other important note to make is that in my unscientific study of all the women I've spoken to and other workers the last nine and a half years, the vast majority went into force arbitration never worked in the profession ever again. We can spend all day long talking about the fact that people are not hiring older workers.
▶ 1:14:54Mrs. Carlson: They certainly are not hiring them if they have gone through a force arbitration situation, because they have most likely signed an nda and they cannot explain to their prospective employer what happened to them at their previous job. There is a myriad of problems, but to meet force arbitration is the people.
▶ 1:15:13Sen. Gillibrand: Ms. greszler.
▶ 1:15:15Ms. Greszler: I've been fortunate not to experience or see my peer experience age just commission, but my employer--age just commission, but my employer has taken the step to say we value and older workforce because of the experience they can share with the younger generation is increasingly valuable.
▶ 1:15:36Ms. Greszler: I would like to see more employers understand that and see what that brings when you can help younger workers and share things like conscientiousness and work habits and help them build their careers.
▶ 1:15:49Sen. Gillibrand: Mr. chairman.
▶ 1:15:51Chair Scott: So, thank you --Ms. greszler, can you go back to the comments you made on social security, allowing people to not be a cap and still get it? Number one, how would that work? Number two, how would that impacted the liability of social security?
▶ 1:16:15Ms. Greszler: Yes, the retirement earnings test I described is a misunderstood part of the program. People see it as a 50% additional tax on top of their federal taxes, payroll taxes, state and local taxes. This is an 84% tax on any dollar above $23,000 per year that an older worker earns, and this affects people between the ages of 62 and 67 -- 62 and 66.
▶ 1:16:48Ms. Greszler: The majority of workers claimed benefits early in that window. Multiple studies have shown that this significantly reduces the willingness to work when you have an 84% tax on that. People don't realize the benefits get added back in later on once they reach the normal retirement age, but it is perceived as a pure tax. It reduces work options.
▶ 1:17:11Ms. Greszler: By in the minute I got in saying we are not going to take away social security benefits-- eliminating that and saying we are not going to take away social security benefits, your benefit will stay the same, they will not be that adjustment later on, this will improve social security because when people work longer, they are paying more social security taxes, additional taxes. They are earning income they get to keep. Across-the-board this is a common sense good policy.
▶ 1:17:35Chair Scott: Why was this in the first place?
▶ 1:17:39Ms. Greszler: When social security first started in the 1930's, depression era program, they wanted older workers to get out of the workforce to freed for younger workers. You cannot collect social security check unless you stop working entirely. It has been modified over the years. As it stands today it is this additional 50% tax.
▶ 1:18:02Chair Scott: Has there ever been a cbo score?
▶ 1:18:05Ms. Greszler: I don't know of one, but I estimate $18 billion in total tax revenues and an extra $8 billion in social security revenues per year.
▶ 1:18:17Chair Scott: Ms. carlson, what else besides the legislative solution -- what else do you think employers are to be doing to be respectful of all the workers? -- older workers?
▶ 1:18:31Ms. Carlson: Well, if they want to take to ta voluntarily take away the workforce arbitration, we don't have to pass a law. But there has been an explosion of force arbitration where we have 60 million americans went in 1991 we had 2%. I believe that passing the law is the best way to handle this, because it simply gives the worker a choice, and just taking out the word "forced" would make all the difference in the world.
▶ 1:19:01Chair Scott: Mr. horton, you think the protecting older americans act -- doesn't strike the right balance between the interest of the employer and interest of the employee, making sure everybody is respected?
▶ 1:19:16Mr. Horton: I do think so, senator. One of the things I really admire about both the efaa and protecting older americans act is the fact that it allows ploys to choose -- it allows employees to choose. They get to choose whether they want to arbitrate, they get to choose whether they want to litigate. That takes away one of the most pernicious parts of force arbitration, which is the fact that it is essentially unilaterally imposed by employers and employees.
▶ 1:19:44Chair Scott: Thank you.
▶ 1:19:49Sen. Warren: Thank you. So all workers are the fastest growing share of the workforce. And one big reason for that is because it has gotten a lot harder for americans to retire, because high costs and low wages squeeze families. So here we are in the richest country in the world, where I think workers are to be able to work for fair pay and fair conditions, and then retire with security.
▶ 1:20:20Sen. Warren: But many workers post-retirement are back in the workforce in part-time jobs. One of the things they encountered there are what are called just in time scheduling practices. This is when employers give workers their schedules at the very last minute. Sometimes as little as a day or two before the scheduled shift.
▶ 1:20:46Sen. Warren: And while that might be just in time working for an ai algorithm, looking at the latest foot traffic, for example, in a grocery store, it is great for the algorithm but not so great for the workers. So do you go to the doctor's appointment, or do you skip the shift and not get paid? Will you be able to pay your electric bill if your shift this week it gets canceled?
▶ 1:21:17Sen. Warren: Older workers are more likely to be part-time, we are just practices --where just-in-time scheduling practices are far more common. Ms. leamond, you are the chief advocacy and engagement officer at aarp. Why are last-minute schedule changes particularly difficult for folder workers?-- olde workersr?
▶ 1:21:39Ms. Leamond: Well, senator, I think last-minute schedule changes are difficult for all workers. I will say I think you all know aarp has offices in every state, so I oversee a staff of 700 multigenerational workers. And my experience has been on all issues related to flexibility, it is just as much a concern of younger workers as it is older workers.
▶ 1:22:09Ms. Leamond: I would say older workers may be juggling a few more caregiving duties and medical appointments. Mothers and fathers in their 40's and 50's are the sandwich generation can be with children and those responsibilities, along with caregiving. And our younger staff I find of the busiest because many of them are in school at night and juggling lots of other duties.
▶ 1:22:34Ms. Leamond: I think flexibility is something that doesn't just affect older workers, but all workers. You have free to something important, though, which is when we have talked a lot about workforce flexibility, he has been framed in terms of working at home or working in the office. And really what I find most of the discussion to be about is not so much of that, but work hours.
▶ 1:23:00Ms. Leamond: Can it be flexible so I can drop my kids off at school in the morning and then work a little later? Can I adjust my hours in some other ways? I think employers that are committed to multigenerational workforces are beginning to adapt and understand how important flexibility is. I think we all benefit from knowing our schedule in advance. I was joking with the team that I think we all appreciated being invited last week to testify rather than last night.
▶ 1:23:31Ms. Leamond: And those other kinds of things I think we can all benefit from.
▶ 1:23:35Sen. Warren: And can you just say a word about what happens to workers when last-minute work schedule changes conflict with your obligations outside work? I have given my own summary, but you are the expert.
▶ 1:23:53Ms. Leamond: Well, when schedules change, one of two things happen. You either have to arrange something in your personal life, often with some cost, or you miss something at work. And that, depending on your employer, can be a matter for discussion or a matter for serious confrontation.
▶ 1:24:19Ms. Leamond: And I think it really depends, and it's incumbent upon all of us to talk much more about what are the labor force needs. We are going to have to engage more older workers in jobs across this country. And what does that mean, and what does that mean for multigenerational workforces?
▶ 1:24:37Sen. Warren: So it seems to me that we need some guidance around this --, as you say some employers are changing, but many are not. The question becomes what is the right way. What should be the workplace rules? I've got a bill called "schedules that work," and it would give employees just a couple of rights.
▶ 1:25:02Sen. Warren: One is the right to request a schedule that works for them without getting fired for making the request. I know that seems like common sense, but for a lot of people that is not happening in the workforce. And the second thing is to say that if schedules are going to be changed at the last minute, then it needs to be some competition for the worker --compensation for the worker. You can't hold people and effect on call.
▶ 1:25:30Sen. Warren: That is, you are going to come in next thursday, you agree you are coming next thursday, you will be there next thursday, and then on thursday morning you get a call that says "don't come in," and don't get paid for the day. If you held your thursday open, there need to be compensation in return for that. I think your point is right, Ms. leamond, that it would be helpful for workers of all ages.
▶ 1:25:58Sen. Warren: But it is particularly helpful for workers who are part-time workers because they face so much more than full-time workers to, and particularly helpful for workers woho have obligations outside the workforce. I'm going to continue to work on this.
▶ 1:26:19Sen. Warren: I'm going to encourage other members of the aging committee to take a look at it, just to try to get some guidelines in place that will be helpful for all of our workers, but I think we'll have special benefit for older workers. Thank you, Mr. chairman.
▶ 1:26:36Chair Scott: Senator warren, let me as a business person tell me the issue we are dealing with. Because I agree with you, we all want to know our schedules. Bu ift you think about it from the standpoint of an employer, here is what goes on. Let's say you take a restaurant. Everybody gets their reservation through opentable, and you find out that your reservations are down 50%. And so you say how many people should I have come in.
▶ 1:27:06Chair Scott: You say, well, I don't need as many workers today. Is it good for the worker? No. But if you told the worker to come in, but then the employer -- it costs them money. Can they keep the restaurant open if they didn't -- I think in almost every industry, my experience in the business, everybody always joked this would be a great job except for the customers.
▶ 1:27:35Chair Scott: The customer dictates all this, how many people are going to show up that day. In so many businesses -- not all businesses, and some it's more stable -- but there's a lot of them that the revenue you get that date he's dependent -- revenue you get that date is fully dependent on who is going to show up. My first business was a donut shop, and my revenues for 100% tied to the weather.
▶ 1:28:03Chair Scott: I think you've got a legitimate point because it is frustrating to somebody if they think they are going to get paid and they save their time and they lose the income.
▶ 1:28:12Sen. Warren: You know, I would just say in response, because I appreciate the point you make, the question is not customers. I get it, customers can come or not come, and that will change how many workers are needed at any given time. The question is affairs -- is who bears the burden of that risk.
▶ 1:28:35Sen. Warren: And the idea that the employer says "I want you to be available, I want you to block out your thursday no matter what, don't take a class that meets on thursday, don't agree to take care of your ranch on thursday, paid a caregiver who is going to show up and watch your husband who cannot be left alone," that the employee takes on all of that cost and risk the employer takes on none of it in many industries.
▶ 1:29:02Sen. Warren: I think that is the part we're trying to figure out, who is it should be responsible for the. I think employees need a little more help on their side & said give some guidance --and some rules that give some guidance.
▶ 1:29:26Sen. Gillibrand: Thank you all for coming. This was an excellent hearing. We learned a lot about this issue and I really appreciate the time and expertise you offered. Thank you so much. Thank you, Mr. chairman.
▶ 1:29:40Chair Scott: If any senators have additional questions for the witnesses were statements, the hearing record will remain open until next wednesday to 5:00 p.m. Thanks. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap.org]