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Saturday, December 24, 2016

Year's End Terminations: Legal Firings or Illegal “Culling the Herd” of Older Workers?

It comes as little surprise to many, that employers often hand out their pink slips at the end of December. While this may seem to be emotionally the worst time of year to inform workers that they no longer have a job, it does not make it any more illegal than at any other time. It is only significant if employer applies an illegal basis, such as age, when choosing which employees will be let go and which will remain. Age must be a bona fide occupational qualification for an employer to have a rule mandating retirement at a specified age.

If you are an older employee and the year-end pink slips were disproportionally given to the older workers such as yourself, the employer might be illegally discriminating. I am an aggressive and compassionate attorney who has successfully represented claimants in their 70' s and 80's, both private and public employees, who were turned down as clients by other firms because of their more advanced age. I welcome the more advanced-age cases because everyone has a right to work and many octogenarians have no choice but to work to survive.

Some businesses want to start off the new year with a fresh face, a new outlook, and new  “branding” by illegally “culling the herd” of older workers. With certain very rare exceptions, as when certain statutes stipulate mandatory retirement ages for some defined public employees, or in the presence of a bona fide occupational qualification- example, i.e., true safety concerns in some occupations such as for certain airline pilots - if age is the determining factor in the employer’s decision-making process as to who to keep and who to fire, then the employer is possibly violating the federal Age Discrimination in Employment Act and the New Jersey Law Against Discrimination.   

The age of 40 is frequently, but not always, considered the dividing line in age discrimination employment matters largely because of the wording of the federal statute, the Age Discrimination in Employment Act (ADEA) which utilizes the age of 40 as a benchmark. 

People Who Are Age 40 or Older Are Protected under the ADEA.

People who are age 40 or older are protected under the ADEA. However the ADEA  does not protect workers under the age of 40. Under the ADEA, age discrimination can occur when the victim and the person who inflicted the discrimination are both over 40. Under the ADEA, it is not illegal for an employer to favor an older worker over a younger worker, even if both workers are age 40 or older.

Not all employers  are covered by the ADEA. This statute  only applies to all private employers with 20 or more employees, state and local governments , employment agencies, labor organizations and school districts.

New Jersey Workers under Age 40 May File Age Claims under the NJLAD because New Jersey Does Not Have the Restrictions of the ADEA.

Certain states, such as New Jersey, do not have such restrictions as the age of 40 being the dividing line or limiting claims to certain size employers. The New Jersey Law Against Discrimination (NJLAD) however applies to all private and public employers in New Jersey regardless of their size.

In New Jersey, age is an impermissible factor to use in making employment hiring and promotion decisions and in determining who gets laid off. Unlike a claimant who brings a claim under the federal ADEA, in New Jersey, employees under age 40 are also protected from age discrimination.

Victims of age discrimination in employment often erroneously believe that they have to file a claim first administratively before they can file a lawsuit. However, while this is true if a person wants to file his/her age discrimination claim under the ADEA, New Jersey victims of age discrimination in employment may file an age discrimination claim directly in New Jersey Superior Court under the NJLAD without having to first file an administrative claim with an agency.

According to government statistics, age claims have increased. Age claim filings with the EEOC comprised 19.6% of all claims filed with that agency in 1997 as compared to 22.5% of all claims filed in 2015.

One Should Not Assume That a Mandatory Age-based Retirement Policy Is Legal. Age must Be a Bona Fide Occupational (BFOQ) Qualification for an Employer to Have a Rule Mandating Retirement at a Specified Age.

An employee  should not assume that an employer’s mandatory age-based retirement policy is legal for their employment, unless retaining employees of that age is prohibited by some other statute or law. Unless mandated by another statute or law, age must be bona fide occupational (BFOQ) qualification for an employer to have a rule mandating retirement at a certain age, and the employer must demonstrate that its rule mandating retirement at a certain age is reasonably necessary to the normal operation of their particular business.

 For instance, mandatory retirement of pilots who reach as certain age has been upheld by an appeals court. In one  matter, Exxon Mobil Corp. was sued in 2006 by the EEOC where it was alleged that the company discriminated against pilots when it forced them to stop flying for them when they turned 60 years of age. The EEOC took the position that age is not an appropriate measure of a pilot's qualifications, and that the pilots’ experience and their flying records were more important and argued further that a mandatory retirement age which is not required by the law, violated the ADEA. 

First known as the "age 60 rule," Congress raised the rule limit to age 65 in the Fair Treatment for Experienced Pilots Act in 2007. These age  limits only applied to certain operations, leaving open the question of whether certain other operators or carriers could legally require pilots to retire upon reaching a certain age. The United States Court of Appeals for the Fifth Circuit after eight years of litigation, issued a decision in March 2014 that allowed a Part 91 operator to continue to apply the "age 65 rule" to its operations. The Fifth Circuit Court concluded that age was a bona fide occupational qualification (BFOQ) of being a corporate pilot at ExxonMobil and  the Fifth Circuit affirmed the decision of the lower court to dismiss the lawsuit. 

To establish a BFOQ, Exxon Mobil Corp. had to demonstrate that its rule was reasonably necessary to the normal operation of its particular business and that either ExxonMobil had reasonable cause to believe that substantially all persons over the particular age would be unable to perform the job safely and efficiently, or hat it would be impossible or highly impracticable to deal with the older employees on a case-by-case basis.

The Court found that Exxon Mobil Corp. had established that the risk of a pilot's sudden incapacitation in flight increased significantly with their age, and that there are no adequate means of testing each pilot case-by-case to determine whether a pilot was at risk to be so incapacitated while piloting a plane.

This  Fifth Circuit's decision creates mandatory precedent for the states that comprise the Fifth Circuit, which does not include NJ which is in the Third Circuit, but other federal courts faced with this issue will likely consider this decision. Workers who are let go because of their employers’ implementing a mandatory retirement policy in their business should not assume it it legal. A policy mandating a specified age for retirement must be found to be not only practicable but also  that such bona fide occupational qualification is a prudent option for addressing that particular business’s difficult tasks and responsibilities. 

What You Can Do

If you were given your pink slip and believe that your employer used age as the determining factor as to who to keep and who to let go, it is important that you consult with an attorney who is experienced in age discrimination. I am an aggressive and compassionate employment law attorney who is experienced in representing older workers. 

If you are being subjected to such unlawful workplace discrimination, please contact Hope A. Lang, Attorney at Law today for a free consultation.

Hope A. Lang, Attorney at Law serves clients throughout New Jersey, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris Counties with locations in Central, Western and Northern NJ to meet with clients.

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