Age Discrimination: Illegal but Also Difficult to Prove

Q. I was employed by a company for 17 years in an executive management position, then demoted to a sales representative with a contract for an assigned territory.

During the next nine months, the territory was reduced and there was not enough left to make a living. I was forced to look elsewhere for employment. No changes were made to the contract.

This was also done to others in my age group, the late 50s and 60s. One man, whose wife was sick at home, had to resign after being assigned a territory starting 250 miles from his home. In some cases, we were replaced by much younger personnel. The company made comments to others that we no longer fit its image, even though we performed well and the new personnel has not been able to match our sales figures.

I have not been able to obtain a job that pays anywhere near what I had been earning and have lost all benefits, including medical, pension, etc. Is this type of action allowed?

--D.M., Cypress

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A. It is illegal for an employer to discriminate against an employee based on age. The problem is proving it. The age discrimination laws in California apply only to those who are over age 40. There is no maximum-age limit.

It sounds as if you have some good evidence of age discrimination. Age-related statements that you “no longer fit its image” show the company’s bias. Your good past performance and the poor performance of your replacements also are relevant, as well as any statistical information showing that the company is terminating older workers.

You should either file an age claim with the state Department of Fair Employment and Housing or the federal Equal Employment Opportunity Commission, or seek the advice of an attorney. If you fail to act within one year of your termination, the deadline for claiming your rights will pass.

--Don D. Sessions

Employee rights attorney

Mission Viejo

A Matter of Compensation

Q. My husband and I work for a property-management company that provides an apartment as partial compensation for our work. Upon being assigned an apartment complex to manage, we had to sign a contract stating that we would work a specific number of hours in return for a monthly salary.

When we had to work additional hours to do our jobs, we put these extra hours on our time cards. The time cards were returned to us, and we were told to adjust them to show that we worked only the hours stated in the contract.

We were told our jobs should be performed within the contracted hours. It was implied that if it takes longer some months, we are not doing our jobs properly. How legal is this lack of compensation for extra hours worked?

--C.L., Downey

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A. Whether you are entitled to extra pay for extra hours worked depends upon whether you are exempt from the overtime requirements of federal and state wage and hour laws.

Federal and state laws provide exemptions for “executive” employees. The federal and state tests vary slightly, but, in general, to qualify for the executive exemption, you must have a job that primarily involves managerial duties, such as hiring, training and supervising employees, planning and scheduling work, determining techniques for performing work, and making decisions regarding the procurement of materials, supplies, machinery or tools. “Primarily” means more than 50% of your time.

The federal exemption also requires that you supervise two full-time employees (or the equivalent of two full-time workers), although federal law allows you supervisory credit if you oversee other employees as you perform the same work that they perform.

If you qualify for the executive exemption, you are not entitled to be paid for extra hours worked. Moreover, although an employer may not keep track of an exempt employee’s hours for compensation purposes, it is lawful for an employer to monitor an exempt employee’s productivity.

Your employer could discipline or terminate you if you were not able to complete your duties within the contracted time period, unless there was some significant expansion of your duties beyond what was expected when you made your agreement.

On the other hand, if you do not qualify for the executive exemption, you would most likely be entitled to be paid for the extra hours you worked (including an overtime premium, if applicable).

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

Is an MBA a Waste of Time?

Q. I had always planned to work for several years and then go back to school and get a master’s in business administration. But what I’m hearing is that there is no market for MBAs and that they are a dime a dozen. Is this true? Is getting an MBA a good idea to improve my career and employment picture?

--Z.T., Woodland Hills

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A. I am sorry to say that there is a widely held myth that advanced degrees in higher education, such as MBAs, somehow hamper a person’s career options or advancement.

This is simply not true. All studies of the impact of higher education on employment and career success suggest that more education leads to greater career opportunities and greater earnings. Of course, it is an individual decision about whether the time, money and effort invested in a graduate degree are worth it.

--Ron Riggio, director

Kravis Leadership Institute

Claremont McKenna College