GENERAL SUMMARY

Title I of the Americans with Disabilities Act (ADA) prohibits discrimination against applicants and employees on the basis of disability when the employee or applicant is qualified to perform the job with or without a reasonable accommodation. Failure to comply with the requirements of the ADA exposes the employer to both civil and criminal liability in the form of civil penalties, imprisonment, payment of lost wages, compensatory and punitive damages, as well as compelled hiring, reinstatement or promotion of affected employees.

The ADA was amended in 2008 with the Americans with Disabilities Act Amendments Act or ADAAA. Before the ADAAA was passed, many claims against employers failed because the individual was not considered as disabled under the law. Now, the ADAAA provides that the definition of disability should be construed broadly, which greatly increases the number of individuals who may now be considered as disabled under the law.

The ADA applies to all employers engaged in an industry affecting commerce who have at least 15 employees each working day for 20 or more weeks in the current or preceding calendar year. 42 U.S.C.

§ 12111(5). The ADA protects individuals with a physical or mental

impairment that substantially limits one or more major life activity, who have a record of such an impairment, or who are regarded as having such an impairment, whether or not the impairment limits or is perceived to limit a major life activity, and who, with or without reasonable accommodation, can perform the essential functions of the job.

U.S.C. § 12102(2), 12111(8); 29 C.F.R. § 1630.2. An individual who has an impairment that is episodic or in remission is covered if the impairment would substantially limit a major life activity when active. 42 U.S.C. § 12102(4)(D). The ADA does not preempt any state laws establishing equal or higher protections of the rights of disabled persons. 42 U.S.C. § 12201(b).

Prohibited Conduct
Generally, the ADA prohibits employers from discriminating against an applicant or an employee in regard to job application procedures, hiring, advancement, discharge, compensation, job training, and other terms, conditions and privileges of employment on the basis of: (1) a physical or mental disability that substantially limits the individual’s major life activities; (2) a record of such a disability; or (3) being regarded as having such a disability, whether or not the disability limits or is perceived to limit a major life activity. 42 U.S.C.

§ 12112(a), 12102(2); 29 C.F.R. § 1630.2(g), 1630.4. An employer

may not discriminate against an individual because such individual has opposed any act or practice made unlawful by the ADA. Neither may an employer coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of any right granted or protected by the ADA. 42 U.S.C. § 12203; 29 C.F.R. § 1630.12.

Medical Examinations and Inquiries
An employer may not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability. 42 U.S.C.

§ 12112(d)(2). An employer may, however, make pre-employment inquiries into the ability of an applicant to perform job related functions. 42 U.S.C. § 12112(d)(2); 29 C.F.R. § 1630.13, .14(a).

An employer may require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of the applicant, and may condition an offer of employment on the results of such examination, if all entering employees are subjected to such an examination and the medical file created is separately maintained and treated as confidential. Post offer, employment entrance medical examinations and inquiries do not have to be job related and consistent with business necessity unless criteria are used to screen out persons with disabilities. 42 U.S.C. § 12112(d)(3); 29 C.F.R. § 1630.14(b).

Medical examinations and inquiries of existing employees must be job related and consistent with business necessity. This does not prohibit an employer from making inquiries into the ability of an employee to perform job-related functions. 42 U.S.C. § 12112(d)(4); 29 C.F.R. § 1630.14(c).

Mandated Conduct
An employer is required to make reasonable accommodations for qualified individuals with a disability during employment or when necessary to allow a job applicant to perform the essential job functions of the position. 42 U.S.C. § 12112(b)(5); 29 C.F.R. § 1630.9. “Reasonable accommodation” may include:

Making existing facilities used by employees readily accessible to and usable by individuals with disabilities,
Job restructuring, part time or modified work schedules,
Reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations,
Training materials or policies,
The provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities, and
Making the workplace and interview location readily accessible.

Notice
The covered employer must keep posted, in a prominent and conspicuous place, a notice explaining the ADA. 42 U.S.C. § 12115; 29

C.F.R. § 1601.30.

Reporting/Record Keeping
The ADA imposes certain record keeping obligations on covered employers. 42 U.S.C. § 12117; 42 U.S.C. § 2000e 8(c); 29 C.F.R. §

1602. Employers of 100 or more employees, unless exempted, must submit a yearly report (Standard Form 100). The employer must keep a copy of the most recent annual report. 29 C.F.R. § 1602.7 et seq. Employers who require medical examinations must keep those records separate from other records. 42 U.S.C. § 12112(d)(3).

Records made for the purpose of an employment action (e.g., hiring, firing, promotion) must be kept for at least one year from the making of the record or the employment action, whichever is later. Records made for the purpose of termination must be kept for one year after the termination. When an employment action is challenged under the ADA all relevant records must be kept until the final disposition of the complaint. 29 C.F.R. § 1602.14.

Exceptions
An employer may enforce a requirement that an individual not pose a direct threat to the health or safety of other individuals in the work place. A “direct threat” means “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” 42 U.S.C. § 12111(3), 12113(b); 29 C.F.R. § 1630.15(b).

Illegal drug use is not a disability; however, an employer cannot discriminate against an applicant or an employee who has used, but no longer uses, illegal drugs. Prohibition of drug use at the workplace and administration of drug testing is not prohibited by the ADA. 42 U.S.C.

§ 12114; 29 C.F.R. § 1630.3(a), 1630.16(b).

 

Discrimination Based on Religion

Executive Summary: This statute, like the ADA, has two legal components: a discrimination prohibition and an accommodation obligation. Its accommodation obligation is far less demanding than accommodation under the ADA. It usually involves working around an employee’s Sabbath or religious holiday observance request. Unique to this statute, discrimination claims frequently are made by one employee against other employees. For example: playing religious music, preaching to fellow employees, offering prayers or badgering other employees to participate in bible study. More difficult issues arise with religious head dress and beards.

Discussion. Title VII defines discrimination on account of “religion” to include all aspects of religious observance and practice, as well as “belief ”. 42 US.C. section 2000e (j). It explicitly requires “reasonable accommodation of an employee’s religious observance and practice.” The hallmark case for years has been Trans World Airlines, Inc. v. Hardison, 423 U.S. 63, 53 L.Ed. 2d 113 ( 1977). It involved an employee’s request to refrain from working on Sunday and the impact of the request on a seniority clause in the union contract. The Court established a “de minimus” cost standard as the litmus test with which to measure the accommodation obligation an employer bears. Unlike the ADA, which might require a ramp or elevator to be installed, or other significant financial investments in equipment in order to ensure that an employee, with a disability, can perform the work, the accommodation obligation under this statute is quite minimal. Usually this involves working around an employee’s Sunday worship requests, and allowing observance of religious holidays such as Christmas, Easter, Ramadan, and similar sacred dates.

Dress or grooming practices of eastern religions fall under the umbrella of accommodation. Jewish yarmulke, Muslim headscarf, uncut facial hair of Sikhs, Rastafarin dreadlocks are examples. On the other hand, the company has wide latitude in establishing dress standards, particularly when the employee deals with the public, or there is a health or safety issue. See, EEOC v. United Parcel Serv., 94 F.3d 314 (7th Cir. 1996). A company’s grooming standard for a counter sales person can be more vigorously enforced than dress standards for a fork lift operator in the yard. See, Coulter v. Costco Wholesale Corp., 390 F.3d 126 ( 1st Cir. 2004) ( employer may require employees to cover facial piercing). Medical providers have almost carte blanche to establish any dress, hair, or cleanliness standard. The same applies to cooks and food servers in restaurants.

Requests for accommodation should trigger an interactive process between the employee and his supervisor. If there is only de minimus impact on the employer, the requested accommodation should be granted. Examples of accommodation include flexible scheduling, voluntary shift substitutions, job reassignments, modification of responsibilities, rotating Sunday shifts, allowing religious garb to be worn underneath a required company attire.

Sample Statement of Company Policy. “The Company prohibits treating an employee differently because of her/his religious beliefs. Additionally, the Company prohibits employees from making unwelcome solicitations to discuss religious topics, forming bible study groups at work, and making derogatory comments about the religious beliefs of others.”

To this latter point, frequently religious discrimination claims are filed against the company and a fellow employee for obnoxious or boorish religious solicitations or preaching. See, e.g Peterson Hewlett Packard Co., 358 F. 3d 599 (9th Cir. 2004) (employee lawfully terminated for refusing to remove prominent postings of Bible passages condemning homosexuality). Courts have prohibited employees from evangelizing while working; upheld discharging an employee for claiming other employees were immoral or ungodly; have condoned ordering employees to turn off loud Christian music; prohibited employees from wearing a graphic anti-abortion pin in the workplace; prohibited employees from greeting customers with “god bless you” and “praise the lord”. In Shapolia v. Los Alamos Nat’l Lab 992 F.2d 1033( 10th Cir. 1993) the court held that an employee stated a claim of discrimination by alleging that he was terminated for not being a Mormon.

Privacy in the Workplace

The Tension in the Law between Employee Privacy Violations and Negligent Hiring
Social media allows an employer to gain an extraordinary amount of information about a job applicant or a current employee, and employers are using this information to make decisions. See Note, Negligent Hiring and the Information Age: How State Legislatures Can Save Employers From Inevitable Liability, 53 Wm. & Mary L. Rev. 1397 (2012). “One 2010 study commissioned by Microsoft found that 78 percent of recruiting and human resources personnel used search engines to evaluate potential employees, and 63 percent visit social networking sites as part of the screening process.” Id. “The same study found that 70 percent of [those making hiring decisions] had rejected candidates in light of the information that they gleaned from Internet searches.” Id.

While the Internet and social media provide useful information to employers about job applicants and about current employees, it is a double-edged sword. The Internet and social media also reveal protected characteristics about applicants or employees that the employer might never have known about before the Internet. Further, the Internet Employment Privacy Act, effective May 2014, places limits on an employer’s ability to request personal information from job applicants. See U.C.A. § 34-48-101 et seq. The Act prohibits employers from requesting a prospective or current employee’s username and password for any personal Internet account. U.C.A. § 34-48-201(1). The Act is largely aimed at employers seeking access to social media accounts of applicants and employees. If an employer engages in such conduct and takes any adverse action, including failure to hire, the aggrieved person can bring suit and receive up to $500 in damages. U.C.A. § 34-48- 301(2).

On the other hand, if social medial would have revealed that an applicant has violent tendencies or history but the employer failed to uncover this information as part of its pre-screening process, the employer may be liable for negligent hiring. Utah law allows an employee or even a third party to sue an employer for negligent employment. To prevail on a claim for negligent employment, the employee must prove that the employer’s “negligence in hiring, supervising, or retaining its employees proximately caused her harm.” Retherford v. AT & T Communications of Mountain States, Inc., 844 P.2d 949, 967 (Utah 1992). While an employer may be held liable for its employee’s actions if the employee acted within the course and scope of his employment while committing the negligent act, an employer may be held directly liable for its own actions or inactions based on the tort of negligent employment. Birkner

v. Salt Lake Cnty., 771 P.2d 1053, 1059 (Utah 1989) (affirming the entry of judgment against the employer for negligent supervision despite concluding that the company was not vicariously liable for the employee’s sexual battery). See generally J.H. v. West Valley City, 840 P.2d 115, 124 (Utah 1992) (“Regardless of whether an employer may be held liable [for its employee’s actions], an employer may be directly liable for its acts or omissions ”). Because of potential liability, an employer

has incentive to learn as much as possible about potential employees and current employees.

An employer should try to learn as much as possible about applicants and its current employees for legitimate business reasons to avoid a claim for negligent hiring, training, or supervision. At the same time, the employer must ensure that each employment decision it makes is based on legitimate, nondiscriminatory, and non-retaliatory reasons. Further, an employer should ensure that its Internet and social media searches are tied as closely as possible to legitimate business concerns.

Finally, to avoid liability, an employer should be aware of possible claims based on Utah privacy torts, criminal history background check requirements, and drug and alcohol testing requirements.

Utah Privacy Torts
Because of the tsunami of information available online about individuals, an employer should be well-versed with privacy torts and state and federal statutes regarding the employment relationship. While not an exhaustive list, below are some of the issues of which employers should be aware. Utah recognizes three privacy torts that may arise in the employment context: (1) intrusion upon seclusion; (2) public disclosure of private facts; and (3) false light publicity. Stein v. Marriott Ownership Records, Inc., 944 P.2d 374, 377 (Utah App. 1997); Cox v.

Hatch, 761 P.2d 556, 563 (Utah 1988). An intrusion upon seclusion claim arises when the employer commits “an intentional, substantial intrusion, physically or otherwise, upon the [employee’s] solitude or seclusion . . . that would be highly offensive to the reasonable person.” Turner v. General Adjustment Bureau, Inc., 832 P.2d 62, 67 (Utah App. 1992) overruled on other grounds by Campbell v. State Farm Mut. Auto Ins. Co., 65 P.3d 1134, 1165 (Utah 2001). When making a threshold determination of offensiveness, a court may consider such factors as the degree of intrusion, the context, the conduct and circumstances surrounding the intrusion, as well as the intruder’s motives and objectives, the setting into which he intrudes, and the expectations of the individual whose privacy was invaded. Stein, 944 P.2d at 377. An employee must have a reasonable expectation of privacy with respect to the area of intrusion. Courts have held that guessing an employee’s email password may be highly offensive. Fisher v. Mt. Olive Lutheran Church, 207 F.Supp.2d 914, 920, 928 (W.D. Wis. 2002). Thus, employers should not circumvent passwords or other restrictions to learn more about an employee or applicant. See Note, Negligent Hiring and the Information Age: How State Legislatures Can Save Employers From Inevitable Liability, 53 Wm. & Mary L. Rev. 1397 (2012).

An employer can be liable for the tort of public disclosure of private facts if the employer publicizes – in a way that would be highly offensive and objectionable to a reasonable person of ordinary sensibilities –

matters concerning an employee’s private life. See Shattuck-Owen

v. Snowbird Corp., 2000 UT 94 ¶ 11, 16 P.3d 555. Employers may share information about employees with co-workers or management as long as the information is shared only with individuals who have a legitimate interest in the information. The employee’s freedom to divulge information about employees diminishes as the private and sensitive nature of the information increases. For example, if an employee is sexually assaulted at work, the employer should be careful to share information to others only as necessary to conduct an investigation into the assault. Id. Otherwise, the employer may face liability for public disclosure of private facts.

Employer liability can also arise if the employer publicizes a matter that places the employee before the public in a false light, if the false light would be highly offensive to a reasonable person and the employer knew or disregarded whether the publicized matter was false. See Watkins

v. Gen. Refractories Co., 805 F.Supp. 911, 918 (D. Utah 1992). False light claims differ from unreasonable publicity claims in that the private information disseminated by the employer must be false or misleading instead of private. A claim for defamation may arise under similar facts. Cox, 761 P.2d at 558-559.

Because of these common-law-invasion-of-privacy torts, employers should be careful when monitoring voice mail, email, or an employee’s computer network. Common law invasion of privacy claims may arise when an employee has a reasonable expectation of privacy with respect to communications or information that is monitored by the employer. Because personal, sometimes confidential, communications typically find their way into communication systems provided for business use, it is necessary to have a clear policy statement published and distributed to employees that advises that the employer’s communication systems are intended for business-related purposes and that they are monitored for business reasons. Incidental and occasional use of the employer’s communication systems may be permitted, but employees should be advised that such communications will be treated no differently from other messages and that the employer’s confidentiality and business interests require it to reserve the right to access and, when appropriate, disclose all communications created or sent within its communications

systems. Also, any covert surveillance of employees should be undertaken with great caution and only after consulting with legal counsel. Therefore, employees should use the employer’s communication systems with the understanding that all messages and communications may be available for review by any authorized employer representative and that such communication systems should not be used for personal communications that the employee considers confidential. If the employer advises its employees that their computer activities on the office system are monitored, employees most likely have no reasonable expectation of privacy in records accessed using the employer’s server.

Criminal History
Decisions from the Equal Employment Opportunity Commission (EEOC) restrict the use of criminal history information in the employment context because of the disparate impact such considerations have against minorities. For example, courts have found that since an arrest is not conclusive of any wrongdoing and since minorities have historically been targeted for arrests in a disproportionate manner, arrests should not be considered absent a strong showing of “business necessity.” See Gregory v. Litton Sytsems, Inc., 316 F.Supp. 401 (C.D. Cal. 1970), modified on other grounds, 472 F.2d 631 (9th Cir. 1971). Further, the “business necessity” required to use arrest records is demanding, and is almost never satisfied.

While employers may more freely use information about a criminal conviction in employment decisions about an arrest, the EEOC has explained that a criminal conviction may not serve as an automatic bar to employment. To satisfy Title VII, a conviction-based disqualification must still be justified by “business necessity.” This standard is more lenient in the context of convictions when compared to arrests. In the conviction context, EEOC decisions require the following factors to be considered in determining “business necessity”: “(1) the nature and gravity of the offense, (2) the time that has passed since the conviction and/or the completion of the sentence; and (3) the nature of the job held or sought.” EEOC Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.

§ 2000e et seq. (1982) (2/4/87).

Drug and Alcohol Testing
Utah’s drug and alcohol testing statute permits an employer to collect samples from and test prospective and current employees for the presence of drugs or alcohol. Utah Code Ann. § 34-38-1 et seq. Testing must conform to requirements in the statute. For example, the testing must be conducted according to a written policy, and may require testing to determine employee impairment, as part of investigations into workplace accidents or theft, to maintain safety, or for productivity or quality concerns. Employers following the procedures required by statute are protected from certain forms of civil liability when disciplinary action is taken against an employee based upon negative test results.

 

Equal Pay Act

Executive Summary: The 1963 Equal Pay Act, 29 U.S.C. section 206(d) is the only statute that spells out the precise discrimination formula : unequal pay for work requiring the same skill, effort and responsibility. The Equal Pay Act frequently is over-looked by Title VII plaintiff attorneys in favor of the more straight forward theory of proof under the broader category of sex discrimination. Four statutory defenses are available: Unequal pay based on seniority, a merit system, quantity or quality of work or upon any factor other than sex.

Discussion. The Equal Pay Act actually is part of the Fair Labor Standards Act ( the Federal Wage and Hour Law ), although it is administered by the EEOC. Because it is part of the FLSA, an employee does not need to file a claim of discrimination, and can proceed directly to court.

The statute reads in pertinent part: “No employer shall discriminate between employees on the basis of sex by paying wages at a rate less than the rate at which it pays employees of the opposite sex for equal work on jobs which require equal skill, effort and responsibility, and which are performed under similar working conditions. There are four defenses or exceptions: Unequal pay due to (1) a seniority system, (2) a merit system, and (3) a system that measures quantity or quality of production, or (4) a differential based on any factor other than sex. 29 U.S.C. section 206 (d). To comply with this Act, an employer may not reduce the hourly rate of an employee.

The language of the Act has fostered understandable litigation over the phrase “similar working conditions”. For example: is there a difference between a night shift and day shifts, between weekend work and work on Monday through Friday, or between jobs that require heavy lifting ( which are usually filled by men ) and the more routine tasks on a retail store the floor: lifting, sorting and supplying (predominately filled by women ). Costco‘s, Macy’s and Lowes’ floor work are examples. The phrase “equal skill, effort and responsibility” has been construed to mean “substantially equal” . As a general rule, Courts have demanded a clear showing that the jobs in question are in fact equal before penalties or accommodations are imposed. Beck-Wilson v. Principi, 441 F.3d 353 (6th cir. 20006).

Although culturally there is a general disparity between the wages of men and women, when viewed simplistically as two groups, equal pay violations have been more difficult to prove when the equal pay algorithm is applied. See, generally, The Pay Gap, the Glass Ceiling, and Pay Bias: Moving Forward Fifty Years after the Equal Pay Act, ABA Journal of Labor and Employment Law, Vol. 29, Number 3, 2014. Since 1963, from postal workers to fast food servers, from nurses to physicians, from school teachers to bus operators, men and women generally have been paid substantially equally for the same work. Much of the immediate post 1963 litigation, for 15 years, centered on vestiges of clear discriminatory practices dating from the 1930’s. The professions, nursing, physicians, attorneys, accountants, are examples of employment where wage disparities seldom exist as between the sexes.

The more realistic concern for the 21st Century employer is the difference in pay and advancement opportunities for women in higher level management positions – the glass ceiling. Even in this setting the employer will see a Title VII action far sooner than an equal pay claim. No separate policy statement is needed.

 

Family and Medical Leave Act

GENERAL SUMMARY

Federal law governs an employee’s ability to take job-protected leave. Utah does not have statutes that govern this situation. The federal Family and Medical Leave Act (FMLA) imposes an obligation on affected employers to provide eligible employees with up to 12 work weeks of unpaid leave per year. Leave can be used in connection with the birth, adoption, or foster placement of the employee’s child; the employee’s care for a seriously ill spouse, child, or parent; or the serious illness of the employee. Failure to comply with the requirements of the FMLA exposes the employer to liability in the form of fines, payment of lost wages and benefits, as well as compelled reinstatement and/or promotion of affected employees.

Coverage
FMLA applies to any employer engaged in commerce or in any industry or activity affecting commerce, who employs at least fifty employees during twenty or more workweeks in the current or preceding calendar year. Public agencies are covered employers without regard to the number of employees employed. 29 U.S.C. § 2611(4); 29 C.F.R. § 825.104-108.

To be eligible for FMLA leave an employee must: (1) have been employed by the employer for at least 12 months; (2) have worked at least 1,250 hours during the 12 month period preceding the taking of leave; and (3) work at a worksite where 50 or more people are employed by the employer either at that worksite or within 75 miles of that worksite. 29 U.S.C. § 2611(2); 29 C.F.R. § 825.110-11.

FMLA does not supersede any laws or collective bargaining agreements that provide more generous family or medical leave rights. Nor does the FMLA modify any anti-discrimination laws. 29 U.S.C. § 2651; 29 C.F.R. § 825.700-02.

An employee is entitled to 12 weeks of leave. 29 U.S.C. § 2612(a) (1); 29 C.F.R. § 825.112-114. The leave may be unpaid. 29 U.S.C. § 2612(c); 29 C.F.R. § 825.207. An employer may require certification by a health care provider regarding the health condition. An employee who has taken leave for their own serious health condition may be required to obtain certification of their fitness to return to work. 29 U.S.C. § 2613(a); 2614(c)(3); 29 C.F.R. § 825.305 .308, 312.

Following FMLA leave, an employee is entitled to return from leave to the position of employment the employee left or to an equivalent position. 29 U.S.C. § 2614(a); 29 C.F.R. § 825.214-215. Group

health benefits shall be maintained throughout the employee’s leave as they would have been maintained had the employee continued in employment. If the employee fails to return from leave the employer can usually recover premiums paid during the employee’s leave. 29 U.S.C. § 2614(c); 29 C.F.R. § 825.209-13.

Notice
Each employer must post in a conspicuous place, where notices to employees and applicants are customarily posted, a summarization of the requirements of the FMLA. 29 U.S.C. § 2619; 29 C.F.R. § 825.300. An employer must provide in its employee handbook a written explanation of the FMLA. If the employer does not have a written handbook the employer must provide the employee requesting FMLA leave written guidance and specific notice concerning the employee’s rights and obligations under the FMLA and the consequences of failing to meet those obligations. 29 C.F.R. § 825.300.

Record Keeping
Employers must maintain for three years: basic payroll and identifying employee data; dates and hours of FMLA leave taken; copies of employee notices of leave; documents describing employee benefits and policies regarding leave; payments of employee benefits; records of disputes regarding FMLA leave; and medical certifications. 29 C.F.R. § 825.500.

No Interference/Retaliation
An employer must not interfere with, restrain or deny the exercise of rights provided under the FMLA. Nor may an employer retaliate or discriminate against an employee for asserting rights under the FMLA or opposing any practices made unlawful by the FMLA. 29 U.S.C. § 2615.

 

Age Discrimination in Employment Act

 

 

 

The Age Discrimination in Employment Act (ADEA) prohibits age discrimination against persons 40 years of age and older in hiring job applicants and with respect to compensation, terms, conditions or privileges of employment. Failure to comply with the requirements of the ADEA exposes the employer to both civil and criminal liability in the form of civil penalties, imprisonment, payment of lost wages, and liquidated damages, as well as compelled hiring, reinstatement or promotion of affected employees.

 

Application
ADEA applies to all employers engaged in an industry affecting commerce who have 20 or more employees each day of at least 20 weeks in the current or preceding calendar year. 29 U.S.C. § 630(b). The ADEA protects any current, prospective or former employee over age 40 with the exception of certain governmental employees. 29 U.S.C. § 630(f ). ADEA does not preempt laws that meet the standards of the Act. 29

C.F.R. § 1625.10(g). Laws that do not meet the standards of the ADEA are superseded. 29 C.F.R. § 1625.6(c). The commencement of an action under the ADEA supersedes any parallel action under state law. 29 U.S.C. § 633.

 

Prohibited Conduct
ADEA prohibits employers from refusing to hire, discharging or otherwise discriminating against individuals 40 years of age or older with respect to compensation, terms, conditions or privileges of employment. 29 U.S.C. § 623(a). Employers should not publish any advertisement relating to employment that indicates any preference, limitation, specification or discrimination based on age. 29 U.S.C. § 623(e). The ADEA generally prohibits involuntary retirement. 29 U.S.C. § 623(f) (2); 29 C.F.R. § 1625.9. However, the ADEA does not prohibit the compulsory retirement of certain high level employees at the age of 65 employed for the prior two years in a bona fide executive or high policymaking position and entitled to an immediate annual retirement benefit of at least $44,000.00. 29 U.S.C. § 631(c); 29 C.F.R. § 1625.12. Employment applications requesting an age or birth date are closely scrutinized and should be avoided. 29 C.F.R. § 1625.5. Generally, an employer cannot establish a pension plan that reduces benefits on the basis of age. 29 U.S.C. § 623(i). However, a pension plan can have minimum age requirements for retirement benefits. 29 U.S.C. § 623(i).

Mandated Conduct
The employer must keep posted, in a prominent and conspicuous place, a notice explaining the ADEA. 29 U.S.C. § 627; 29 C.F.R. § 1627.10. Employers must maintain payroll records which contain the name, address, birth date, occupation, rate of pay, and weekly compensation for three years, 29 C.F.R. § 1627.3(a), employers who make the following records must maintain them for one year: job applications; resumes; records of promotion, demotion, and transfer; job postings; test results; physical examinations; and written descriptions of benefit plans and seniority and merit systems, 29 C.F.R. § 1627.3(b). If an action is brought against an employer for violation of the ADEA, the employer must keep all required records until the final disposition of the

action. 29 C.F.R. § 1627.3(b)(3).

Waivers of rights under the ADEA must be “knowing and voluntary.” Among other requirements, any waiver of rights under the ADEA requires that a twenty-one day consideration period and a seven day revocation period be allowed to the releasing employee. A 45 day consideration period is required if the waiver is related to an exit incentive program. 29 U.S.C. § 626(f).

 

Worker Adjustment and Retraining Notificauon Act

GENERAL SUMMARY

 

The Worker Adjustment and Retraining Notification Act (WARN) requires employers to provide 60 days’ notice to employees prior to the temporary or permanent shutdown of a worksite or prior to a mass layoff. Failure to warn employees exposes the employer to liability in the form of civil penalties and payment of lost wages and benefits.

Coverage
WARN applies to all employers who employ at least 100 full-time employees or 100 or more employees, including part time employees, who work at least 4,000 hours per week, exclusive of overtime. 29

U.S.C. § 2101(a)(1); 20 C.F.R. § 639.3(a). WARN protects employees who may suffer an employment loss as a consequence of a worksite closing or a mass layoff. 29 U.S.C. § 2101(a)(5). Employee rights under WARN are in addition to any laws or contractual rights or remedies of employees. 29 U.S.C. § 2105. Additionally, notice given in good faith compliance with WARN does not violate the National Labor Relations Act or the Railway Labor Act. 29 U.S.C. § 2108.

Mandated Conduct
WARN generally requires employers to give 60 days’ written notice prior to a plant closing or mass layoff to the following: (1) each affected employee; (2) employee representatives; (3) the state dislocated worker unit; and (4) the chief elected officer of the local government in the area affected by the closing or layoff. 29 U.S.C. § 2102; 20 C.F.R. § 639.5, 639.6. Notice requirements are detailed in 20 C.F.R. § 639.7. “Plant Closing” and “Mass Layoff” are defined in statute. Notice is not required if closings or layoffs are the result of relocation or consolidation of the employer’s business if the employer offers to transfer the employee with no more than a six month break in employment and the transfer is within reasonable commuting distance or the employee accepts the transfer without regard to the commuting distance. 29 U.S.C. § 2101(b) (2); 20 C.F.R. § 639.3(f)(3), 639.5(b).