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TURNING EMPLOYER WRONGS INTO EMPLOYEE RIGHTS

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Age Discrimination in California Employment

A number of cases are presented to our California state-wide employment lawyers every year concerning questions that applicants for employment (and in rare cases, those already employed seeking promotions, etc.) are asked concerning their age. For today’s blog, lets assume that anyone over 40 years of age is covered by this law (ADEA, 29 U.S.C. Section 631(a), as well as the State of California’s Government Code prohibitions on age discrimination. California Government Code 12940(a). There are significant differences in things such as remedies (for example, punitive damages and emotional distress damages not allowed in federal ADEA discrimination cases; however, there are also similarities in state and federal age discrimination law, such as the availability of attorney fees to the successful employment. However, even this may be a bit different in practice, as under ADEA, a defendant-employer might win attorney fees as the “prevailing party”.  We normally sue under only the California Government Code as there is no cap on damages as in the ADEA. An exception may exist when we have a highly compensated plaintiff-employee, as there are liquidated (double) damages under ADEA. Finally, California’s broad public policy of enforcing age-related anti-discrimination laws are to be enforced “with the goal of not only protecting older workers as individuals, but also of protecting older workers as a group.” As such, under state law, a claim may be made for disparate impact of various alleged discriminatory policies. This in turn may lead to class action status.

Under both state and federal law, you the wronged employee have the duty to “mitigate” damages, that is, to look for income. If you are ready, willing and able to look for work but don’t put in reasonable efforts to find it, then you may have your verdict reduced by your failure to mitigate. You are not required to take another line of work, accept a demotion or accept a greatly-reduced position.

Can an employer ask you your age without violating the law? Or, as usually happens, can the employer ask some question which tends to suggest your age? We recently had a case where the applicant (in her 60’s) was asked when she received her undergraduate college degree. Asking for this information without a bona fide business reason (which means all applicants are requested to provide this), can be evidence of discrimination. About the only universally non-objectionable age question is whether the applicant is at least 18 years of age. In one recent case, the employer asked the applicant when he started working professionally. The court refused to allow the employee to go to trial (granting summary judgment instead in favor of the employer), holding that the question itself did not provide evidence of discrimination. The court did say the question could have been put forth more precisely. as to the number of years of professional experience held by the applicant.

n California, age discrimination in violation of the Government Code can be used as the basis for a claim of termination in violation of public policy, as age discrimination (we are unaware of an upper limit to age protection by the way). As such, the time period in which to sue is actually two years from the date of forced resignation or termination. If an employee is not suing for wrongful termination-related issues, then they must file a claim with the Department of Fair Employment and Housing and receive a right to sue letter. While the claim can remain open endlessly at the Department, the claim itself must be filed within one year. An age-related claim brought under the Government Code of California can result in reinstatement, back wages, future estimated lost wages, attorney fees, emotional distress and punitive damages. In rare cases, when we ask the court to declare the policy of age discrimination an unfair business practice, the court may grant our request for injunctive relief, in other words, to prohibit future violations.

Employees considering an age-related claim due to an employment issue in California should ask these questions:

Does the employer have at least five employees? (Gov’t Code 12926(d)? (note, even if you intend to sue for termination in violation of public policy using age as your predicate basis, 5 employees is the minimum);

Is the prospective employer a religious corporation? (note that hospitals and health care facilities open to the public are subject to FEHA even if they are owned by or affiliated with religious groups. Gov’t Code 12926(c). If so, FEHA protection is not available.

Am I an employee? Independent contractors may sue under other laws, such as the Unruh Civil Rights Act, but not under the Government Code. Even if your employer considers you an independent contractor, consider whether you are properly classified.

If I am an employee, or want to become one, have I filled out an employment application and do I have the basic qualifications for the job I am being denied? Levy vs. Regents of U of California, 199 CA3d 1334,(1988).

Have I been denied benefits of employment based on age? in one case, refusal to grant educational allowances to workers over 50 did not violate the law, so the legislature re-classified the law to prohibit this. Esberg vs. Union Oil of CA, 29C4th 262, 268 (2002).

Have I been retaliated against for opposing age discrimination either against myself or another worker? if so, you may have a claim for retaliation. This is prohibited both by the common law and the Government Code. Retaliatory actions may include salary cuts, demotions, transfer, adverse performance evaluations, removal of titles and responsibilities,

Have I been replaced by a younger or older worker? if the latter, there may be no basis to claim discrimination based on age. Guz vs. Bechtel National. However, if there is other evidence of discrimination, then this fact alone will not defeat your claim.

My employer claims it is “down sizing”. Is this a defense?  A bona fide lay off may still contain evidence that older workers were selected. Many companies try to defend against these allegations by producing age-specific matrix-style information of lay offs. We find these incomplete and in many cases suspect and challenge the companies to provide back up data. We are also highly suspicious when subjective criteria are used to determine who shall be laid off (vs objective criteria such as production line statistics).

Am I required to retire at a certain age? If so, the practice is certainly suspect and are generally unenforceable. In a recent case we handled, an employee alleged violations of the law because the “home”country (Korea) allegedly had an age 58 mandatory retirement policy which the local corporation attempted to enforce in Los Angeles County. There are some exceptions, however, such as tenured faculty (provided the school has a policy permitting re-employment on a year to year basis, physicans aged 70 employed by a professional medical corporations with terms for compulsory retirement, and persons age 65 who were employed for two years as a “bona fide executive” or held a high-ranking policy making position.” are who are entitled to annual retirement benefits of at least $27,000.

Finally, if you feel you’ve been retaliated against for complaining about age discrimination, you are entitled to relief under California Government Code Section 12940(h). In some cases, a related business partner may join in or assist in age discrimination (say a cosmetics manufacturer only wants “young” sales associates to be sent to their in-store counter). Even though they are not your employer,, they may be found liable for aiding and abetting or conspiracy to violated the law.

Age claims may be subject to arbitration agreements you signed at your workplace. A careful reading of the agreement is needed to assure its compliance with several key California decisions, such as Armendirez.

Have I signed a waiver or release of an age claim? If so, was that done knowingly and voluntarily? Skrbine vs. Fleming Cos, 45 CA4th 1353, 1366 (1996). Note, the OWBPA (Older Worker’s Benefits Protection Act, imposes detailed requirements for enforceable waivers of ADEA claims, but does not apply to state laws like FEHA.

Danz & Associates practices employment law throughout California, representing employees only. This blog should be considered educational not legal in nature. Let us hear from you concerning your situation!