San Francisco Employment Law Firm Blog
In a recent Forbes article, a Florida attorney Donna Ballman discusses the employers’ favorite sneaky ways of getting rid of older employees, which are described below. This very much applies to California and the checklist below can be a good start for any older employee who suspects that he is or might be a victim of age discrimination to determine whether in fact the employer is trying to get rid of him for unlawful reasons.
1. Job elimination.
One of the most common excuses used to get rid of older employees is “job elimination.” However, that may just be an excuse for what is really age discrimination. If the company is not really eliminating the job, just changing the title and putting someone younger is your former position, you may have an age discrimination claim.
2. Layoff. The company is supposed to attach to a layoff notice a list of other employees included and excluded from the layoff, along with their ages. Employers can be sneaky about the way they put together these reports. Some will show only select departments or specific job titles, which don’t give the whole picture. More often, they’ll include a few under-40 employees to make the bloodletting look less like age discrimination.
Still, if you are selected for layoff and younger, less-qualified employees at your level are not, you might have an age discrimination claim. If you’re part of a one-person or small “layoff” and you can show that younger people are not being included, then you may be able to prove age discrimination.
3. Suddenly stupid. If, after years of great performance reviews, you’re getting reprimanded for things everyone does, or being nitpicked for things the company didn’t care about before, it’s possible that the company is gearing up for what I call the “suddenly stupid defense.” They’re building a case to get rid of you for poor performance – trying to show a “legitimate reason” other than age for firing you. If you’re being targeted for write-ups when younger employees do the same things and aren’t written up, you may have an age discrimination claim.
4. Threatening your pension. I’ve seen cases where the company threatened that if the employee didn’t retire right away, it would look for ways to go after that worker’s pension. That’s a scary threat, but it may be a hollow one. First of all, few people have what would be considered a “pension” (a lump sum paid out every month). Most people have 401(k)s or similar savings plans that your employer can’t touch.
Your employer may claim that you can lose your right to your vested pension if you’re fired “for cause,” but it’s not that easy. You have appeal rights if they deny your benefits, and you can sue if you aren’t satisfied with the administrator’s decision. If you’re being threatened, it’s time to run speedy-quick to an employment lawyer in your state who handles claims under the Employee Retirement Income Security Act or ERISA – the law governing employee pension plans and other employee benefits.
5. Early retirement. One way employers get rid of older employees is offering a package that includes incentives to take early retirement. Some of these packages are too good to pass up on, so if you are offered one, consider it carefully. If you turn it down, remember you can still be fired at will. However, if the company only fires the older folks, you might have an age discrimination claim. If the early retirement is involuntary, such as when the only alternative offered is being fired, then it probably violates age discrimination laws.
6. Mandatory retirement age. If your employer still has a mandatory retirement age, it’s probably breaking the law. There are exceptions for firefighters and law enforcement. There is also a very limited exemption for employees who are at least 65 years old, who were bona fide executives or high-level policy-makers for their last two years, and who received an immediate nonforfeitable retirement benefit of at least $44,000.
7. Cutting job duties. One way to force older employees out is to cut job duties, limiting your authority and humiliating you with low-level tasks. You may have age an discrimination claim if this happens. So don’t just quit in disgust. (See “Is It Better To Quit Or Get Fired?”)
8. Isolation. Cutting you out of meetings, excluding you from lunches, and sticking you in a cubicle far from the action is another way employers try to get older employees to quit. If only younger employees are being included in activities from which you are excluded, this is evidence of age discrimination.
9. Denying promotions or opportunities for advancement. It’s illegal for an employer to deny you a promotion just because they think you’ll retire soon. Cutting job duties and isolating you are sneaky ways for them to claim you don’t have the experience or qualifications to get a promotion or to advance in the company. If your opportunities are limited after you hit one of those age milestones, it’s time to document what is happening and see whether they are also targeting younger employees for similar treatment.
10. Cutting hours. Another way to put senior employees under duress is to cut hours to the bone. Starving you to death is a way to force you to quit. Here, too, look around and see if older employees are being targeted.
11. Harassment. Cutting hours and job duties, isolating you and assigning menial tasks are all forms of harassment. Other examples of age-based harassment are: calling you the “old man,” or “old lady”; constantly asking when you’re going to retire; saying you’re senile; or making other comments related to age.
If there are signs at work that you’re being targeted because of your age, make sure you document everything and contact an local, experienced employment attorney to discuss what legal and practical steps you can take to either protect your job or enhance any future age discrimination claim you might have. Take steps to protect yourself before it’s too late.