The Job Search and Discrimination by Age

justice, discrimination, law, lawyer, new york
When employers shut you out because you exceed some arbitrary age limit, this can be exceedingly frustrating. Not only is the employer perpetrating an obvious injustice, in many cases, it may be clear that you are best candidate for the position. There are laws prohibiting many types of discrimination. U. S. Equal Employment Opportunity Commission (EEOC) enforces these laws. It behooves an employer to know the relevant laws and regulations. Age is one of the areas of discrimination covered by laws.
Employers are not to treat job applicants or existing employees less favorably because of their age. Current law, covered by Age Discrimination in Employment Act of 1967 (ADEA), applies to employees and job candidates equally. The law applies to people age forty and over. Employers can favor an older employee over a younger employee but not the other way around. The law applies even if both employees are over forty. In other words you cannot hire a 45 year old worker over a 55 year old employee due to age.
Work Contexts and Age Discrimination
age discrimination, age, workplaceThe law covers discrimination in many aspects including hiring, termination, pay level and pay raises, work assignments, promotions, layoffs, benefits, training and general working conditions.
Harassment and Age Discrimination

Law forbids harassment due to age. Examples of such harassment could include offensive remarks about a workers age. Harassment is not everyday good-humored banter or an isolated remark. However, if the banter and remarks become so severe and frequent that it creates a work environment that is hostile or offensive, that is harassment and prohibited by law. If the adverse treatment due to age results in negative employment decisions, such as termination, that is considered harassment and prohibited by law. It will be considered harassment if it is the victim’s manager or supervisor, a coworker or even someone who is not an employee such as client or vendor.
Policies, Practices and Age Discrimination
 Policies and practices implemented by an employer need to be applied to everyone without regard to age. When applied, policies and practices can be illegal if they can be shown to have harmed or impacted negatively employees forty year old or older due to their age. Areas commonly effected include:
work, policy

  • Training and apprenticeship programs.
  • Want ads and job notices.
  • Employment inquiries.
  • Benefits and retirement policies.

Any employer with more than twenty employees is subject to the Age Discrimination in Employment Act. It also applies to all government agencies, federal, state and local.

Workers Adjustment and Retraining Notification Act (WARN)

The Workers Adjustment and Retraining Notification Act (“WARN”) became effective on February 4, 1989.  WARN requires employers to give employees notice when an employment change is advanced.  The Act calls for at least sixty (60) days notice to employees who will experience employment loss either because of a plant closing or because of a scheduled mass layoff.
An employee experiences employment loss in any one of the following three scenarios:

  1. An employment termination, other than a discharge for cause, voluntary departure, or retirement;
  2. A layoff exceeding six (6) months;
  3. A reduction in an employee’s hours of work of more than fifty (50) percent per month for a period of six (6) months.

WARN covers employers who have more than one hundred (100) employees.  Employees who work less than six (6) of the past twelve (12) months, as well as employees who work less than twenty (20) hours a week are not counted into this total.  Private for profit or non-profit, as well as public and quasi-public entities who operate in the commercial context are obligated under WARN to give their employees notice pending a plant closing or mass layoff.  Federal, State or local government entities are governed under WARN.  Hourly, salaried, managerial and supervisory employees are all entitled to the sixty (60) day notice.  Business partners however, are not entitled to the Act’s protections.
Employers of a temporary project are not required to give their employees notice prior to plant closings or mass layoffs.  Additionally, if the closing of the plant or mass layoff is the result of completion of a project, those workers are also not entitled to WARN’s protection.  The employees must have been hired with the understanding that their employment was conditional on the completion of the project.  An employer cannot label an ongoing project as temporary to avoid the requirements under the WARN act.    Additionally, striking employees are not entitled to notice when their actions lead to a lockout, which acts as an equivalent to a closing or mass layoff.  Non-striking employees who are adversely affected are entitled to notice.
If fifty (50) or more employees will experience employment loss (defined above) during any thirty (30) day period, then WARN requires employers to inform their employees.  Part time employees and new employees are not included in this employee total.  Advanced notice is also required when an employer has a mass layoff proposed.  If during any thirty (30) day period, five-hundred (500) or more employees, or forty-nine (49) to five-hundred (500) employees, which make up thirty-three (33) percent of the workforce are going to be laid off, then the employer must give notice.  The employee calculation for plant closings apply to mass layoffs as well (part time and new employees are not included in the total employee calculations).
If an employer plans to sell his business or is involved in the sale of the business, employees are still entitled to receive notice if a closing or mass layoff is proposed.  It is the seller of the business’ responsibility to give sixty (60) days notice to his employees up to and including the date/time of the sale if there is a risk of employment loss.  The buyer is responsible to provide employees with sixty (60) day notice of any proposed plant closing or mass layoff after the date/time of the sale.  Notice that the business has been sold is not required unless a closing or mass layoff is in the works.
The employer must give notice to either the chief elected officer of exclusive represented employees, the labor union, or to unrepresented workers who may reasonably be expected to experience employment loss.  Even employees who do not count towards employment totals, those workers who work less than twenty (20) hours a week or who have worked less than six (6) of the last twelve (12) months are still entitled to due notice.  Notice must also be given to the State dislocated worker unit, as well as the chief elected officer of the local government where the employment site is located.  There are, however, three exceptions to this requirement:

  1. If the employer is seeking new capital to stay open and advanced notice would ruin this opportunity, then notice is not required.  This exception only applies to plant closings and not mass layoffs.
  2. If a plant closing or mass layoff was not reasonably foreseeable at the time notice is required, then the notice requirement is excused.
  3. If a plant closing or mass layoff is the result of a natural disaster, such as a flood, earthquake, drought or storm; notice is not required.

If an employer does not provide sixty (60) days notice, and relies on one of the exceptions listed above, the employer must prove that one of the exceptions did in fact take place.
While notice is required sixty (60) days in advance, there is no requirement delineating what that form must be.  The notice must be in writing, but any reasonable method of delivery that will ensure receipt sixty (60) days prior to closing or mass layoff will suffice.  The notice must specify the reasons for a plant closing or mass layoff.  If either will occur more than fourteen (14) days after the date announced in the notice, then additional notice on behalf of the employer is required.
If you have been affected by a plant closing or mass layoff and your employer has not followed the requirements under the Worker Adjustment and Retraining Notification Act, contact Valli, Kane & Vagnini to learn more about your rights and legal options.

Understanding Pregnancy Discrimination and Your Rights as an Expecting Mother

Women shouldn’t
have to fear for their jobs when starting a family.  But, we hear about pregnancy discrimination in the workplace all the time.  Companies frequently do not abide by the Pregnancy Discrimination Act of 1978 or the U.S. Department of Labor’s Family Medical Leave Act.  Women are too often subject to unlawful actions made by employers because of pregnancy.
There are many different forms of pregnancy discrimination.  The majority include: reassignment to a department out of your career path or a lower paying position, refusal of medical health care benefits that are available to other employees, or cutting your hours and pay during pregnancy.
Here are some things you should know about the laws protecting women, and the action you should take if you believe you have been discriminated against.
U.S. Department of Labor’s Family Medical Leave Act
Under this act, employers with 50 or more employees must give up to 12 weeks of unpaid leave to employees that have worked for the company for at least 12 months and have clocked a minimum of 1,250 hours of service.  The FMLA regulates leave of absences that are necessary for one of the following reasons:

  • Childbirth and infant care of the employee’s newborn
  • Adoption or foster care placement with the employee
  • A serious health condition of an immediate family member that requires care
  • A serious health condition of the employee

Pregnancy Discrimination Act of 1978
The Pregnancy Discrimination Act of 1978 provides guidelines that employees and employers must follow during pregnancy to ensure that there are no discriminatory actions.

  • An employer cannot refuse to hire you because of your pregnancy as long as you can complete the functions of the job
  • If you are temporarily incapable of completing the tasks of your job because of your pregnancy, your employer must modify tasks and assignments (as done with other temporarily disabled employees).
  • You must be permitted to work as long as you can complete the functions of your job.
  • If you are provided with health insurance by your employer, the insurance must cover pregnancy-related expenses as it would for other medical conditions
  • When crediting seniority, vacation time, pay increases or other benefits, you must be treated the same as other temporarily disabled employees.

If you feel you have been discriminated against, take these steps:

  • Document any discriminatory conversations or occurrences.  Detail the time and place, as well as participants and witnesses.
  • Continue to perform your tasks and assignments, but start documenting how well you are performing.
  • Compile a record of previous performance reviews to keep as evidence.
  • Consider contacting your human resources department to file a complaint, and document your complaint within your own files.
  • Contact an attorney to discuss your options

To prove you have been discriminated against, you must fit this criteria:

  • Be a member of a protected class (as a woman, you are protected)
  • Meet the expectations of your job and your performance was up to par with your employer’s demands (this can be proven with your performance reviews, raises, promotions and your own documentation of such material)
  • Be fired, demoted, passed over for a promotion, not hired for a position, or suffered any other form of adverse action.
  • Be treated differently or less favorably than other employees with similar circumstances who were not a member of a protected class.

In court, your employer must provide a legitimate and non-discriminatory reason for the adverse action.   You must show that the employer’s reason is a pre-text (a false reason used to conceal the discriminatory action).  If you are able to prove their rationale is pre-textual, you have a chance of winning in front of a judge or jury.
Contact an attorney to discuss your circumstances and further explore your legal options.

Censoring your Social Media Page for Employment

Companies are using social media websites as an information gateway in hiring and monitoring employee behavior.  Sites like Facebook and Twitter are influential in the hiring process for employers, and can also result in termination if they see information that is not “appropriate employee behavior.”  Employers monitor social networking sites for provocative or inappropriate photos, drinking and drug use, bad-mouthing coworkers and much more.  They even measure your communication and creativity skills from monitoring your social networking sites.
While we all use our social networking sites to display information regarding our private life for friends and family, employers fear that proprietary information will be revealed over the web and they will be negatively represented in the online world.  If you are looking for a job or currently employed, follow this list of Do’s and Don’ts to clean up your page and remain in the safety zone of social media.

  1. DO delete or hide anything on your profile that employers may view negatively.  Remove pictures of spring break, vulgar comments or posts, rude language, and any commentary you may have posted about previous employers.  Remember there is no sense of “free speech” that is regulated in social media.  We’ve all heard the recent stories of New York teachers being fired for their online commentary of unruly classrooms and scandalous private lives.  It can happen to anyone, so keep your private thoughts and comments about your job to yourself.
  2. DON’T use social networking sites to vent about your job.  While you may need to talk about an overpowering boss or an arrogant coworker, never do it online.  While you may think your page is private, a coworker that you forgot you “friended” could take the page directly to your employer.  What you say online is permanent and is valid evidence that can be used against you in court and certainly by your employer or prospective employer.
  3. DO promote yourself socially and professionally online.  Update your pages to show your creativity and work ethic.  Write about accomplishments that you have made inside and outside of work.  Include your interests and passions and your goals.
  4. DON’T post anything that could be incompatible with your work persona.  For example, if you claim a disability or injury that alters your job responsibilities, refrain from posting pictures of you partaking in physical exercise.  If you are claiming worker’s compensation, investigators will often look at your social media sites to ensure that they are consistent with your claims.  An employer cannot discriminate against you because of disabilities, but you can be terminated if they unveil inconsistencies within your social media pages.

Job Applications: What are your rights and how to handle a discriminatory question.

Preparing for a new job and the application process is often nerve-wracking and stressful.  Do you ever wonder what the employer will ask you, or what qualifications you should emphasize,  to show that you are capable of performing the tasks of the job?  Preparing to answer questions such as “What can you do for our team?” or “What’s your greatest weakness?” is crucial.  But imagine your potential employer asking you “How old are you?” or, “Are you planning on having kids soon?” The interview process has changed quickly from innocent to illegal.  Before going to your next job interview, brush up on your rights as an applicant.
There are many things an employer cannot ask you on your application.  These are certain questions that violate your civil rights, such as:

  • Age/Date of birth. The Age Discrimination in Employment Act protects applicants from disclosing their age during the hiring process to prevent age discrimination.  If the applicant is less than 18 years of age, asking for the date of birth is permissible because of children’s labor laws.  After being hired, the company may ask for birth certificates or licenses to verify date of birth for pension purposes, but they may not ask for these before hiring you.
  • Race, Religion, National Origin. Title VII of the Civil Rights Act requires that covered employers consider people of all nationalities and color.  Each application should state that the company is an Equal Opportunity Employer, and at no point should you answer a question like “Where were you born”, “What is your ancestry”, or “What religious beliefs do you follow?”  There are I-9 forms that can be used to determine the status of citizenship of an applicant.  These questions do not belong on an application.
  • Physical traits, disabilities. Unless height and weight are directly related to job performance, these questions should not be on the application. The Americans with Disabilities Act prohibits general inquiries about disabilities, health problems, and medical conditions. The employer may ask if you are capable of fulfilling the requirements of the job, but they may not ask you if you have disabilities or health problems.

There are many other restrictions on the application and interview process, which should be explored by everyone looking for employment.  While most employers do not have discriminatory intentions and are attempting to find the right “fit for the job,” you may find yourself in a situation where you are asked a question that is unlawful.

What should you do when this problem arises?  First, consider the intent of the question and how it was phrased.  It is important that you understand the employer’s reason for asking the question and their method of assessment, rather than assuming they have discriminatory intentions.
There are many ways to creatively answer questions without disclosing unlawful information.  For example, if you are asked “How old are you?” the best answer is to refer the question back to the job you are applying for.  “I am of legal working age” is a fit answer.  If you are asked “What religion are you?” it is okay to answer with “My religious practices will not hinder my potential to successfully perform the tasks of this position.”  Keep in mind that your application becomes a permanent part of your file.  If you choose to be untruthful on your application, that only provides the employer a potentially valid reason to terminate you down the road.
There are times, however, that witty answers may not be enough for the prying interviewer.  If this is the case, you may follow these steps:

  1. Inform the employer that the question is illegal.  While most people wouldn’t dare correct an interviewer, it can be tactfully stated in a non-accusing way.
  2. Answer the question.  Now that you have informed them of the question being illegal, the employer would be in violation of your civil rights if the information is used against you.
  3. If you are offended, you can file a claim with the Equal Employment Opportunity Office.

Be aware that taking this stance for your civil rights is courageous and may cost you the opportunity for employment.  However, if an employer is left in the dark ages and has no qualms about violating your rights, it might be best to seek employment elsewhere.

Sweeney v. United States Postal Service (Mail Carriers)

This action was instituted by a group of Smithtown Postal workers who oppose actions by the USPS and its agencies which illegally targeted older employees in an effort to force them into retirement. In doing this, the USPS utilized various techniques including creating a hostile work environment, overly disciplining older employees, and further harassing and insulting older workers. These policies violate the Age Discrimination in Employment Act (“ADEA”).

  1. USPS Smithtown Age Discrimination Complaint

Johnson v. Nassau County Social Services

This action was instituted to address the County of Nassau’s policy of not paying employees with less than ten years of tenure for their overtime hours which were banked over the course of their employment. These hours were banked for overtime worked, vacation days or sick days which were not used. Essentially, these workers were required to work overtime without compensation at all.

  1. Nassau County Social Services Overtime Complaint
  2. Court Order Conditionally Certifying Overtime Class

Gambino v. Harvard Protection (Security Guards)

This action was instituted to address Harvard Protection’s failure to pay security guards proper overtime when they worked in excess of 40 hours per work week. Rather, guards received a single paycheck denoting the first forty hours as straight time and were compensated at two thirds their regular rate for the second forty hours, essentially compensating them with straight time for all hours worked.

  1. Court Approved Notice of Lawsuit and Consent to Sue to all Harvard Security Guards and Fire Safety Directors employed from February 8, 2007 to the present.
  2. Gambino Amended Complaint
  3. Court Order Granting Conditional Certification of Harvard Protection Security Guard and-or Fire Safety Director Collective Class