Orange County Employment Attorney

Age Discrimination in Employment Act

The Age Discrimination in Employment Act was passed in 1967. It protects people age 40 and over from employment discrimination that is age-related. The protections of the act apply to people applying for a job as well as the current employees of a company. In order to be subject to the rules of the ADEA, an employer must employee (consistently) 5 employees in California. The ADEA says 20 employees but allows states to have a different rule as long as the number of employees is less than the 20 mandated by the ADEA. An employer also may not retaliate against an employee that in any way helps a case against the company or files a complaint. The ADEA addresses four broad areas. They are: apprenticeship programs, pre-employment inquiries, job notices and advertisements, and waivers.

Apprenticeship Programs

In an apprenticeship program, it is overall unlawful for an employer to discriminate based on age. This applies to joint labor-management programs as well as pure apprenticeships. There are some very specific exceptions to the rule and the EEOC (Equal Employment Opportunity Commission) can grant an exemption, but, overall, the rules are hard to avoid.

Job Notices and Inquiries

According to the ADEA, it is not acceptable to include specific age limitations, age preferences, or age specifications in any job notice or inquiry. The major exception to this rule is when there is a reason a specific age person is needed for a job. In these instances, an employer must have a bona fide occupational qualification (BFOQ) which is reasonably necessary to the operation of the business.

Pre-Employment Inquiries

There is nothing that specifically says an employer may not ask a potential employee about their age before they are hired; however, this practice commonly raises suspicions concerning age discrimination. This is not generally a smiled-upon practice because it often discourages older people from applying.

Waivers

Employers may ask an employee to waive their ADEA rights in a retirement package offering or other employee termination program. Also, an employer may ask an employee to waive their rights as part of an ADEA settlement agreement. The ADEA sets out specific rules for what constitutes an acceptable waiver and what doesn't. One of the most important rules is that the employee must be given at least 21 days to sign their waiver.

If you have any other questions concerning the Age Discrimination in Employment Act, contact Orange County employment attorney Perry Smith.