Age Bias Rules Apply to Workers Over 40

Q: I have been a department manager for three years. During that time, my reviews have been excellent, my raises and bonuses very good.

I recently turned 50, and my manager decided to reorganize things. Without any notice, two-thirds of the people who had reported to me were assigned to another manager who had no experience overseeing engineers.

I feel that I soon will be eliminated and wonder what it would take to show that I have been a victim of age discrimination. If the company has offered severance packages to others as an incentive to leave, would it be discriminating against me if I don’t receive the same package?

--T.K., Mission Viejo

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A: Both the federal Age Discrimination Employment Act of 1967 and the California Fair Employment and Housing Act prohibit discrimination on the basis of age. These laws protect employees who are 40 and older.

To establish that an employer is violating these laws, an individual must show that a specific practice or policy results in age discrimination. There must be direct evidence or circumstantial evidence, such as different treatment of employees over and under 40.

U.S. Supreme Court guidelines state that employees 40 and older must show that they were rejected for a job they were qualified for and that the employer then continued to seek other applicants with the same qualifications. If the employer is then able to demonstrate that its decision was based on business reasons, the employee has to show that the employer’s actions really were just a pretext for discrimination.

Regarding severance packages, if your employer refused to offer severance packages only to you and/or other employees 40 and older, this would be evidence of age discrimination. But the company may have a policy of offering severance only to those employees who have been with the company a certain number of years or who hold certain positions. You should investigate whether the company has a policy of offering severance to some employees rather than to everyone.

If you remain concerned that you are the victim of age discrimination, contact the federal Equal Employment Opportunity Commission or the California Department of Fair Employment and Housing.

--Diane J. Crumpacker

Employment law attorney

Fried, Bird & Crumpacker

What Affects Rights to Severance Pay?

Q: I was recently laid off after a company merger.

My company had informed me that employees would receive 60 days’ notice of the layoff date, but I was let go without this notification.

The company now maintains that, in my job, I was required to travel to various company locations that had fewer than 50 employees. Now, the company is refusing to pay my severance unless I sign a hold-harmless agreement waiving any legal recourse.

What are my legal rights, if any?

--J.B., Lakewood

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A: Based on your description, it is unclear whether you have any legal rights.

If your employer had at least 100 full-time employees at the time of the merger, and laid off 50 or more employees at one of the sites where you worked, you may have had a right to receive 60 days’ notice of the layoff, or pay in lieu of the notice. However, if your employment site had fewer than 50 employees, you probably did not have such a right.

If the severance pay being offered to you is in lieu of the 60-day notice required under federal law, you cannot be compelled to sign a waiver. Any waiver that you did sign under these circumstances would be invalid.

If the company did not have such an obligation, it would be legitimate to require you to waive your rights to receive the severance pay being offered.

It’s also possible that your employer was offering you severance for some other reason than complying with the law on plant closing notices. If so, the obligation to sign a waiver depends on whether you have a contractual right to receive the severance pay being offered to you.

If your employer had already committed to pay you severance before your dispute arose, you cannot be required to sign a waiver to receive the money. If not, then you can be required to sign a waiver.

To assess your rights, it would be necessary to examine your employer’s policies and procedures and handbooks for information on severance pay. You should consult legal counsel to assess your rights.

--Michael A. Hood

Employment law attorney

Paul, Hastings, Janofsky & Walker

Let Shoppers Know You Give Good Service

Q: I work at an upscale department store where employees are paid on a commission basis. I pride myself on my customer service, though other more aggressive employees are more successful and better rewarded monetarily by upper management.

Since most customers seem unable to distinguish between those salespeople who want to give good service and those who see them only as dollar signs, do you have any pointers for the sincere salespeople trying to swim among the sharks?

--S.G., Pasadena

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A: The payoff of providing good customer service is a satisfied customer who will return for future purchases.

You need to make it clear to your customers that if they are pleased with your services, they should ask for you by name the next time they shop. Make sure that they know your name and the times and days you usually work. Give them business cards and encourage them to call you if they have questions or concerns.

Think of ways that you can “go the extra mile” to provide better customer service than your aggressive co-workers. And encourage your customers to let management know if they are pleased with your service.

Over time, more and more of your customers will realize that you are dedicated to serving them, and they will seek you out.

--Ron Riggio, director

Kravis Leadership Institute

Claremont McKenna College