EMPLOYMENT LAW : THEY’RE TRYING TO KICK ME OUT BEFORE I GET MY PENSION.

 

EMPLOYMENT LAW:   THEY’RE TRYING TO KICK ME OUT BEFORE I GET MY PENSION.  WHAT DO I DO?

There are many forms of illegal discrimination.  But the one that is popular today among employers is age discrimination (and its cousin, disability discrimination).  Why?  A store manager who has been on the job for 40 years is, by virtue of his tenure, making more money than a younger store manager, and if the older manager is nearing retirement age, the company may also be paying her a pension soon.  Replacing the older manager with a younger one represents a substantial savings for the company.  (In recent years, Walmart has shown a profit in most quarters not because revenue has been increasing but because it has laid off so many employees.)

But the company which is trying to get rid of its older employees is never going to admit that it is doing so.  The reason given might be insubordination, which upon closer scrutiny amounts to no more than the supervisor’s dislike for the older employee.  The claim might be one of incompetence even though the employee’s record was, until recently, spotless.  The employee, who over time has probably developed a strong loyalty to the company, may be slow to recognize what is happening to her.  But when she does see it, she is sometimes shocked, hurt and degraded so that it is difficult to stand up for herself.

But for the employee that wants to fight what is happening, she does have some weapons.  (At this very moment, we have a client who is testifying in binding arbitration after being made the victim of age discrimination, and he stands a decent chance of winning.)

If the worker is over 40, she is eligible to make an age discrimination claim.  She must satisfy certain requirements.  She must show that she is an employee rather than an independent contractor.  The employer must have 15 employees or more.  And she must show that a younger person replaced her.  And the employer can defend by showing that youth is a “bona fide occupational qualification” for the job.  (This is a fuzzy area that generates a fair amount of litigation.)

If you think you are a target, there are some things you should do.  As with all imminent litigation, stop communicating orally, but rather do everything in writing to the extent possible.  Otherwise, the court action becomes a “he said, she said” battle.  Save evidence that suggests you “more likely than not” are being run out because of your age: for instance, time cards that show you arrived to work on time, positive employee performance reviews, indications that the company is not following its own procedures for disciplinary action, or recorded testimony from co-workers explaining how you were a good worker. Get these things now rather than later.  Memories fade and documents tend to disappear.

And most important, get to an Arizona contract lawyer or business litigation lawyer as soon as possible.