Government, Special Jobs May Require Applicant’s Age

Question: I have recently filled out an application for federal employment (SF 171), and one of the first items asked for was my date of birth. Is it legal to require this information on an application form?

--A.H., Irvine

Answer: It is normally improper to ask a person’s age on an employment application as it is considered good evidence of age discrimination.

However, there are exceptions to that rule. Occasionally, such questions, especially with the federal government, might be reasonably required because of the work involved. The availability of insurance for that particular job might depend on the applicant’s age. Certain types of jobs, in fact, might have restrictions because of the special physical conditions of the job. Some employers are required to ask a question that seems discriminatory on its face to comply with affirmative action requirements.

Even though there are many rules in this and other areas that apply to employers as a whole, very often the federal government carves out an exception for itself. On the other hand, as a general rule, government employers are subject to even more stringent rules than required in the private sector.

--Don D. Sessions, Employee rights attorney, Mission Viejo

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Question: I’ve worked at a bank for a year and a half, most recently as an agent for commercial real estate loans. As part of a promotion earlier this year, I received a six-month contract with a guaranteed monthly salary. When the contract expired, I was told that I could stay at the bank, but only if I worked on a commission-only basis, which is difficult to afford.

Would this be considered a legitimate reason to quit and collect unemployment insurance? It’s awfully hard to look for a job and still work here.

--G.L., Fountain Valley

Answer: It is unclear whether you are an employee of the bank or an independent contractor. If you were an employee when your contract expired and continued as an employee when working on a commission-only basis, it can be argued that you would be eligible for unemployment.

The argument you would make is that the employer caused a change in your job or working conditions that would make a reasonable person quit under these circumstances (i.e., you were effectively demoted with lesser pay).

If you are an independent contractor, then you would not be entitled to unemployment benefits. However, if your employer categorizes you incorrectly as an independent contractor when you are in reality an employee, you may still be eligible for benefits. Whether you in fact are an independent contractor depends on a number of factors, including the degree of control the bank has over the conditions of your employment.

--Thomas M. Apke, attorney, Professor of business law, Cal State Fullerton

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Question: I work for a large aerospace company in Orange County. One of the things they have done to us in the past couple of years regarding pay raises is that if you are near the top of your pay range, they give you a lump-sum increase, which does not increase your base pay. I would guess 80% to 90% of those affected are in the over-50 age group. Is this discrimination, de facto or not?

--J.J.

Answer: Both federal and state law prohibit discrimination on the basis of an employee’s age. However, generally there is no discrimination unless the members of the protected group are treated differently from others who are similarly situated, In the situation that you describe, it appears that everyone at the same pay level is treated equally. The effect on those over 50 would therefore be a function of their seniority and pay levels, rather than their age.

--Calvin House, attorney, Fulbright & Jaworski L.L.P., Adjunct professor, Western State University College of Law

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Question: I work as a senior manager for McDonnell Douglas in Long Beach on the C-17 program. We seem to have an in-house, double standard on how we compensate employees for working an extended week. My department, which installs fuel systems and pressurizes the fuselage to check for leaks, is limited to paying each worker no more than $1,200 per week, including overtime.

But other departments, such as the one that installs flight controls, hydraulics and prepares the planes for final review, can pay up to $1,500 per worker. This doesn’t seem fair to the workers or to me. What can I do?

--D.K., Anaheim

Answer: Probably not much. The C-17 project is governed by a contract between your employer and the federal government. That contract establishes a cost for the entire project, and your employer has budgeted for the costs of each division as it relates to the contract. An employer is free to determine the budget for each division and how much to pay employees within that division. However, the employer must not establish wages based on race, sex or other protected classifications.

--William H. Hackel III, Employment law attorney, Spray, Gould & Bowers

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Question: I have been employed at a very well-known insurance company for the past 4 1/2 years and had an excellent attendance record, until the past 1 1/2 years. I was permitted two 15-minute breaks and a 45-minute lunch hour, as everyone else was. I am also a smoker, so I did utilize the permitted two daily break periods.

No one else in the office utilized these break periods on a daily basis, which entitled them to a 75-minute lunch period. Unfortunately, in the last 18 months that I was in this specific office, I suffered three automobile accidents, which kept me from the office for a week each (three weeks total, with doctors excusing each absence). Needless to say, my flawless attendance record was not flawless anymore. Then, returning to the office after my 45-minute lunch, I was three minutes tardy. In addition, there was another employee with me at the time in question who returned at the same time and was not considered late. In fact, she was permitted 27 minutes longer for her lunch period.

Unfortunately, this three-minute incident led to my being dismissed from my job that very afternoon. I was then denied unemployment benefits because of misconduct on the job. Is there anything at all I can do to benefit from this unfortunate situation I seem to be facing?

--S.C., Anaheim

Answer: Perhaps, although it is difficult to tell from the facts you have presented. If your question is about your unemployment benefits, you can appeal the decision of the Employment Development Department to deny you benefits to the Unemployment Insurance Appeals Board, and may be able to persuade that agency that your tardiness was not misconduct as that term is defined under California law. Whether or not your tardiness in fact will be viewed by that board to be misconduct will depend on why you were tardy, the nature of any warnings that you had received for attendance problems, and your attendance record after receiving any such warnings.

If your question pertains to whether you have grounds for legal action against your employer, the answer depends on a) whether your termination violated any policies of your employer and b) whether you have valid grounds to assert that you were discriminated against--that is, treated differently from other employees for an unlawful reason (e.g., your age, if over 40, your sex, race, religion, national origin, disability, etc.).

To inquire further about your rights, you should contact the department of Fair Employment and Housing. However, it does not appear you have grounds to complain about the different treatment of the employee who was with you, as I assume from your description that she was one of those entitled to a 75-minute lunch period, as you described.

--Michael A. Hood, Employment law attorney, Paul, Hastings, Janofsky & Walker

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Question: I took a buyout from my company in 1993, but now I’m back working for it as a free-lance employee. The employer pays me everything I earn with no withholding for taxes, Social Security or disability insurance. Every quarter, I have been paying taxes to the IRS and the Franchise Tax Board along with forms 1040-ES and 540-ES, respectively.

I am interested in knowing whether a free-lancer such as myself is able to collect unemployment benefits or disability benefits. What are my obligations concerning Social Security taxes? I was also told I need to pay self-employment tax. Can you explain what this is?

--T.L., Covina

Answer: By “free-lancer,” I assume you mean that you are an independent contractor. As an independent contractor, you are responsible for paying your own Social Security taxes, which are also known as “self-employment taxes.” This tax is equal to 15.3% of your net earnings from self-employment multiplied by 92.35%. It must be paid to the IRS on a quarterly basis as part of your estimated tax payment. Also, you must include a Schedule SE with your Form 1040 at year-end to report your self-employment tax liability. Both forms are available from the IRS by calling (800) 829-3676 from 7 a.m. to 4:30 p.m., weekdays.

In addition, if you are an independent contractor, you are not entitled to unemployment or state disability benefits because only employees ordinarily are eligible to receive those benefits. However, elective coverage may be available if you meet certain requirements established by the Employment Development Department. A self-employed person may obtain unemployment or state disability benefits if he or she has elected and pays for such coverage. “Wages” for the purpose of determining the amount a self-employed person needs to pay for enrolling in these state insurance programs are deemed to be all income from your business. If you are interested in obtaining unemployment or state disability insurance, you should contact your local EDD office.

--James J. McDonald Jr., Attorney, Fisher & Phillips, Law instructor, UC Irvine