Building Your Multigenerational Workforce While Understanding New Employment Risks

Justin Steiner, JD

By 2020, Millennials will constitute over 50 percent of the employees in the workplace; by 2025, Millennials will constitute over 75 percent. As a result, it is undeniable that the unique views and expectations of Millennials will shape the workplace in the coming years.

Employers need to equip their workplaces to address the new and different legal issues that will arise from the growing influence of Millennials. Efforts to attract and retain Millennials will become more critical in the coming years. With those efforts, however, is the risk of inadvertently engendering agediscrimination claims by older members of the workforce.

Perhaps the most distinguishing trait of Millennials is their adeptness with technology, including in employment. The term “digital natives” is steadily gaining in use and refers to individuals who grew up with digital technology, and as a result became conversant at an early age with computers, mobile devices, and the Internet. One outgrowth of Millennials being digital natives is their high-volume use of social media. The growing percentage of Millennials requires that employers proactively address social media in the workplace or be exposed to legal risks, such as breach of confidentiality, invasions of privacy, and even harassment and discrimination claims.

Another distinguishing trait of Millennials in employment is that they place more emphasis on personal needs than they do on the needs of the organization. The result is that Millennials seek greater work-life balance, which can manifest in more demands for telecommuting, flexible schedules, and time off than previous generations expect. Millennials’ need for work-life balance makes it incumbent on employers to have clear, comprehensive policies for time off, telecommuting, and flexible schedules to preserve the orderly functioning of the business.


As employers strive to recruit and retain Millennials, the potential exists for both intentional and unintentional age discrimination. For example, in 2011, Google settled a claim brought by a computer scientist who was fired at the age of 54 and alleged his younger supervisor made ageist remarks. At the Y Combinator Startup School at Stanford University in 2007, Facebook founder Mark Zuckerberg was reported to have said, “I want to stress the importance of being young and technical. Young people are just smarter.”

While there are no doubt valid reasons for recruiting technically savvy employees, employers need to be careful how they go about it. State and federal employment laws protect applicants and employees 40 and older from discrimination based on age. According to the US Equal Employment Opportunity Commission (EEOC), job notices should not advertise for “young professionals,” “college students,” or “recent college graduates,” because those phrases violate the law. A job notice advertising for “digital natives” would undoubtedly have equivalent problems. Similarly, treating employees in earlier generations less favorably based on assumptions that they lack the technical adeptness of Millennials is also problematic and may give rise to agediscrimination lawsuits.

To address these risks, employers should start by simply being cognizant of the potential for unintentional and intentional age discrimination against older generations as Millennials are recruited and incorporated into the workplace. Second, employers should recruit and prioritize skill sets rather than age groups. For example, rather than advertising for a digital native (which excludes applicants over 40), an employer could advertise for applicants fluent in social media and conversant with the latest technology (which includes applicants of any age).


Part and parcel of Millennials’ comfort with technology is their ubiquitous use of social media. Millennials’ lives are chronicled for all to see online. It is understandable that an employer may seek to tap this wealth of information when considering a Millennial for employment. However, there are legal risks when an employer researches an applicant on social media.

Information potentially found on social media, such as an applicant’s religious affiliation, national origin, sexual orientation, and medical condition, cannot be used in hiring decisions under various state and federal laws. By learning such prohibited information from social media, employers create the risk of future disruptions in the workplace and even lawsuits that may have been avoided otherwise. Therefore, an employer should consider prohibiting research of applicants on social media. However, if an employer decides that researching social media is too useful a tool to ignore when screening applicants, it should consult legal counsel to ensure that the manager or supervisor conducting such research is familiar with the legal complications and risks inherent in such activity.

Keep in mind that the legal risks posed by learning prohibited information from social media persist once an applicant starts working. To further minimize those legal risks, employers should enact a comprehensive social-media policy to include in their employee handbook. In creating a comprehensive social-media policy, an employer should consider: (1) whether to encourage, discourage, or tolerate social media use; (2) whether the policy will apply only to use of social media in the workplace on the employer’s IT resources or also to use outside of the workplace on employees’ personal IT resources; (3) guidelines for use of social media, taking into account the nature of the business, characteristics of the workforce, and the workplace environment; (4) how to ensure that confidentiality of critical information is preserved, including proprietary business information, and perhaps most critically, patient health information; and (5) the National Labor Relations Act, to avoid illegally hampering protected activity under Section 7 (which relates to union activity, including the right to selforganize, join labor organizations, bargain collectively, and other concerted activity for the purpose of collective bargaining).


Work-life balance is often cited as the most important or one of the most important considerations to Millennials in employment. As such, it’s vital that employers enact or update policies related to work-life balance, since Millennials will no doubt closely scrutinize and rely on those policies. In particular, employers should ensure they have comprehensive policies regarding time off, telecommuting, and flexible schedules to avoid unnecessary disruptions, low morale, or poor retention of Millennials.

A time-off policy should: (1) state what type of time off is available (e.g., sick, vacation, PTO); (2) define which employees are eligible for time off; (3) explain how time off is calculated; (4) place any restrictions on the carryover of time off from year to year; (5) state the procedure for requesting time off; and (6) describe how it is accrued and how unused time off is treated upon separation of employment. A telecommuting policy should: (1) define which employees are eligible; (2) describe the procedure to request telecommuting; (3) explain employee responsibilities (e.g., for accessibility during work hours); (4) explain employer responsibilities (e.g., for technical support); and (5) remind employees that they must comply with all other policies when telecommuting.

A flexible schedule policy should: (1) define which employees are eligible; (2) describe the procedure for requesting a flexible schedule; (3) explain the parameters and guidelines for a flexible schedule, such as how hours should be kept, expectations for timely completion of all work, and requirements for availability by telephone, e-mail, etc.; and (4) remind employees that they must comply with all other policies when on a nonstandard schedule.

Understanding the expectations of the incoming generation and setting up the appropriate policies and communications sooner rather than later will help pave a successful path for your organization as Millennials become a more important part of its future. 

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Justin A. Steiner, an attorney with Bennett Bigelow & Leedom in Seattle, Washington advises and defends physicians, clinics, and hospitals in both employment and medical professional liability matters.