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Proving Age Bias Is Hard but Not Impossible

D o you have a question about an on-the-job situation? If so, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626. Or call (714) 966-7873 and leave a voice mail message with your name and where you live. Questions of general interest will be answered in this column on Mondays.

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Q: How do you prove age discrimination? If you’re applying for jobs and you sense you’re being screened out for being overqualified, is that legal? After a career in the private sector, I want to work in the public sector, but I’m afraid all people see is my age on the application. Is there a recourse?

--B.W., Laguna Beach

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A: Proving age discrimination is often very difficult, especially when hiring is involved. Discrimination against present employees is easier to prove because you often have a history of a “double standard,” as well as willing witnesses to support your claim.

One way to document where you stand, in a hiring situation, is to compare yourself with the other applicants for the position by striking up a conversation with them in the waiting room before or after your interview. Also, ask anyone you know who actually works for the employer to give you feedback about the identity and qualifications of the person who ultimately gets the job.

If you think that the prospective employer is not considering you because of your age, you could file a complaint with the California Department of Fair Employment and Housing or the Federal Equal Employment Opportunity Commission. They have the ability to require the employer to provide all relevant information regarding the job. As an alternative, you can get further information by filing a lawsuit.

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You can try to prevent discrimination by not emphasizing age factors. Instead of putting down the dates of previous employment, you might consider being more general. If the application asks questions about your age or requires your photograph, from which age can be determined, the employer may be in violation of law. On the other hand, some employers, especially in government, might be required to ask you questions regarding your age, or for that matter race, to comply with affirmative action programs.

Keep in mind that in regard to hiring or promotions, it may not make any difference whether the person selected for the job is, in fact, better qualified than you. The law protects your chance to try out for a position. If you have been denied that opportunity for discriminatory reasons, then you may recover damages.

--Don D. Sessions

employee rights attorney

Mission Viejo

Companies Can Set Up Differing Workweeks

Q: Can different departments within the same company work different workweeks in order for the company to avoid paying overtime?

--S.A., Irvine

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A: Yes, different workweeks may be established for different employees or groups of employees. The practice is often done to reduce overtime obligations, but many employees also may request and/or mutually agree to different workweek arrangements.

A workweek is a regularly recurring period of 168 consecutive hours--seven 24-hour periods. Once an employer establishes an employee’s workweek, it remains fixed regardless of the work schedule. The purpose of a workweek is to determine, for overtime purposes, whether an employee works more than 40 hours within that time period. Remember, California has regulations on daily as well as weekly overtime.

--Elizabeth Winfree-Lydon

senior staff consultant

The Employers Group

Employee Incentives Need to Be Worthwhile

Q: I have been using rewards such as cash bonuses, trips and vacation hours as incentives to motivate my employees. However, these incentives do not appear to be working anymore. Do you have any suggestions for motivating my employees?

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--S.I., Anaheim

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A: Your incentive program may be failing because the rewards are not directly tied to employee performance. For cash incentives and other rewards to be effective motivators, employees must see the connection between outstanding work performance and the rewards they are receiving. In addition, the rewards must be seen by employees as “worth the effort"--they need to be substantial if they are going to be truly effective motivators. Furthermore, some of your employees may not be motivated by the incentives you are using.

Try talking to the employees and asking them what kinds of incentives would motivate them. Employees who are involved in setting the guidelines and outcomes for an incentive program should become more committed to the program.

Ron Riggio

professor of industrial psychology

Cal State-Fullerton

Time Cards Not Needed if Records Are Accurate

Q: I work in a small, private business where the majority of the employees work on an hourly basis. The administrators do not require each department to keep time card records on the employees. They go strictly by the word of departmental managers. I have stated that this practice is not legal. Can you please comment on this practice and quote any applicable laws.

--S.S., Anaheim

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A: Both the federal Fair Labor Standards Act and the Wage Orders of the California Industrial Welfare Commission require that employers maintain accurate records of all hours worked by “non-exempt” employees--those employees who are paid by the hour and who are eligible for overtime. Neither federal nor state law requires that employees punch time cards, however.

Time records made by hand by either employees or their supervisors would be acceptable, as long as they are accurate. It is not illegal, therefore, for departmental managers to keep time records of their employees, as long as those records accurately reflect all hours worked by each employee.

--James J. McDonald Jr.

attorney, Fisher & Phillips

labor law instructor, UC Irvine


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