Law School Resources
1. 1967- Workers age 40+ protected from
D. Conditions of employment
29 USC ß 621 (b) "promote employment of older
persons based on ability rather than age, prohibit
arbitrary age discrimination
2. 1974-Federal, state, local government ee's
3. 1984-enforcement transferred to EEOC from DOL.
4. 1978-raised protected age from 65 to 70.
5. 1986-eliminated age ceiling.
6. 1990-higher employment costs (benefits)
associated with ee's "cannot be a factor in decision
II. Protected Class
1.All state and local government and governmental
agencies regardless of size.
2. Er's (Charitable and non profit) of 20 or more
a. 20 or more ee's for each working day of the
week-full time-for 20 weeks (not consecutive) in a
b. P-T Ee's are not countable but if Er is
subject to ADEA, P-T Ee's and temporary Ee's are
TESTS ARE INDIVIDUAL AND FACT DETERMINATIVE. AN
EE IF ER DICTATES TIME PLACE AND CONDITIONS OF
3. PARTNERS OWNERS AND DIRECTORS ARE NOT COVERED
EE'S. Beware of partner--
partner must be positioned to control or be in
decision making posture of ER. Not a subterfuge to
Caruso v. Peat Marwick Mitchell
4. Domestic Ee's of foreign corp's covered.
5. U.S. Citizens of domestic corps over seas are
6. Unions with a hiring hall or an exclusive CBA
of 25 Union Ee's
1. Bonafide executives and decision makers. Look
to ability to hire or fire or guide the corp.
2. Non-forfeitured Retiree Benefits of
3. Police, fire, prison etc. exempted. Secretary
of Labor and EEOC were charged with drafting
guidelines in 1993 but have failed to so.
4. Professors protected in 1994.
1. FAILURE TO HIRE
a. Tough to prove.
b. Ee must prove that refusal to hire was based
on age, not just that a younger Ee was hired. Onus
on Ee. BUT FOR THE EMPLOYEE"S AGE, THE EMPLOYEE
WOULD HAVE BEEN HIRED.
i. look for paper trail
ii. hiring practices so clearly demonstrate.
MOST COMPLAINTS FAIL
2. TERMINATION (90% of all suits)
a. Ee must prove termination was based on age.
b. Look for paper trail.
c. Employer pre-textual defense.
If there is evidence and it can be linked to
the EE has made the claim.
McDonnell Douglas v. Green: 4 prong test adapted
from civil rights.
1. Protected age 40 +
2. Ee applied or was employed and qualified.
3. Applicant rejected or Ee terminated.
4. Following application or termination, the
position either remained open or was filled by a
***NOTE THE HIRING OF A YOUNGER ADEA COVERED EE
DOES NOT EXEMPT ER***
If established, burden of proof shifts to the
THE EMPLOYER CAN ONLY REFUTE REFUSAL TO HIRE OR
TERMINATE IF THE ER CAN DEMONSTRATE THE ACTION WAS
a. Must be non-discriminatory
b. Can be ugly as shit as long as legal.
THE EE MUST DEMONSTRATE THAT ER'S DEFENSE IS NOT
IF SO-TRIER OF FACTS DETERMINES THE VALIDITY OF
C. STATISTICAL EVIDENCE: Tough road to go.
Statistical evidence is the law of large numbers,
and an ADEA claim generally requires specific
evidence that s/he was discriminated against. Just
because an Er elects to terminate upper management,
and all upper management are ADEA protected and
dismissed, the Ee has proven nothing.
D. DISPARATE IMPACT CLAIM:
P must prove:
1. Identify the specific practice challenged.
2. Demonstrate disparate impact on older Ee's.
3. Prove causation.
D can rebut by:
1. Discrediting statistics
2. Demonstrate business reasons and younger Ee's
did not replace.
1. RFOA-Reasonable Factors Other than Age
a. Personality conflicts
c. Health problems
d. Rule violations
e. Poor productivity
So long as the action is not taken on the
basis of age, ADEA has
NOT been violated.
2. BFOQ-Bona Fide Occupational Qualification:
Where age is a bona fide occupational
qualification reasonably necessary to normal
operation of the business. Success is limited
to those jobs generally physically strenuous or
and policy is a factor.
A P may counter other than public safety by
arguing individual testing.
1. Er's are given great latitude to operate
2. Courts will not interfere in the dumping of
3. There is no affirmative requirement to hire.
4. No duty to provide favorable treatment.
5. THE ONLY PROTECTION IS AGAINST AGE
1. ADMINISTRATIVE B/4 LITIGATION
a. Ee's state law prohibits age discrimination.
i. Must FIRST file with state agency.
ii. Within 300 days of filing with state agency,
Ee must file with EEOC.
iii. Ee must wait 60 days after filing with EEOC
b. No state statutory provision.
i. Ee must file with EEOC within 180 days.
ii. Ee must wait 60 days.
iii. If EEOC brings litigation, Ee is barred.
If EEOC does not litigate, Ee may file suit.
2. STATUTES OF LIMITATIONS
a. 2 Years if non-willful.
b. 3 Years if willful.
c. Jury trials available.
1. Back pay.
4. Attorneys Fees.
5. No pain and suffering.
6. No punitive damages.
7. Ee has duty to mitigate. Burden is on Er to
8. If willful-LIQUIDATED DAMAGES of 2X monetary
1. OLDER WORKERS BENEFIT PROTECTION ACT of 1990-
"the higher cost
of employee benefits for old workers cannot be a
reason for termination
or refusal to hire." Er's can spend same $'s for
2. Er's may use voluntary retirement programs as
long as truly
3. Waivers under voluntary retirement:
i. Advised in writing to consult with attorney.
ii. 21 days to exam.
iii. 7 days to revoke.
iv. State right & benefits being waived.
I. ELIGIBITY: A threshold test for
eligibility. MUST HAVE 40 QUARTERS OF COVERAGE TO
WORK HISTORY. An all or nothing test.
1. Quarters Of Coverage: refers to
the minimum earnings in a CY Q but the
earnings need not be in the Q. E.G.: if
earnings required are $600/Q and earnings by
the employee are $1800 in the 1ST Q and no
other earnings in the CY, the Ee gets 3 Q's.
***EMPLOYEE BENEFITS PROVIDED BY ER ARE NOT
***ONLY WHOLE Q's ARE COVERED.
Self employed earnings must be at least $400
in CY to be combined with other earnings to meet
minimum earnings test.
2. Covered Employment: employed and self
employed earnings are covered. Almost all covered.
i. Federal Employees prior to 1/1/84 except
ii. State and local government unless elected by
iii. Student employment by the student's college
iv. Employment of a child by a parent.
v. Domestic service by a person under 18.
vi. Refusal based on religious grounds-Er & Ee
must both be of
the same sect.
II. WORKER'S RETIREMENT BENEFITS: AT FULL
RETIREMENT AGE EE GETS FULL PIA PRIMARY
1938 65 + 2 months.
1939 65 + 4 months.
1940 65 + 6 months.
1941 65 + 8 months.
1942 65 + 10 months.
1955 66 + 2 months.
1956 66 + 4 months.
1957 66 + 6 months.
1958 66 + * months.
1959 66 + 10 months.
1. Early Retirement:
An Ee may retire early with penalty.
Born prior to 1938: 5/9 of 1% prior to 65.
1938 or later: 5/9 of 1% b/4 age 65.
5/12 of 1% age 65 +.
COLA applies to the reduced amount.
2. Deferred Retirement
An Ee may defer retirement with a reward.
COLA's included in increased amounts.
III. PIA- Primary Insurance Amount
90% of the first $426
32% of the next $2,141
15% over $2, 567 = PIA
1. AIME-Average Indexed Monthly Earnings
i. Established at 62
ii. Only wages subject to SS withholds are
----->***Derived from 35 years of data***<------
2. Government Pension Offset
If employed by government and covered by SS, the
offset reduces the first tier of benefits from 90%
to 40% with an ameliorating formula.
IV DERIVATIVE BENEFITS
1. Spousal Benefits
2. Children's Benefits
3. Divorced Spouse
4. Parents Benefits
V. EFFECT OF EARNINGS
1. Provisional Income
2. 1ST Tier
3. 2ND Tier
VII. DISABILITY BENEFITS
VIII. APPEALS PROCEDURES
GENERAL: Provides health care coverage
for individuals age 65 + for acute care. Consists of
2 parts A(hospital) & B(MD). Funded by payroll taxes
levied on Ers &
Enabling statute is 42 USC sec.1395. It provides
A. Part A
1.Any person at least age 65 and eligible
for SS. Note - not receiving SS-just
eligible for SS. A working person age 65 is
2. Funding is 2.9% payroll tax on Er and
Ee with no cap (unlike SS) on wages.
3. All persons eligible should enroll
since there is no financial impact not to
4. Federal Railroad Retirement Beneficiaries are
5. Spouses of Medicare persons are eligible
provided they are 65+.
6. A person age 65+ not SS eligible may enroll
voluntarily by paying $261
per month (1995 figure). However they must enroll
in A and B. Not just A.
----> A person not eligible for SS who does not
enroll at 65 must pay a 10%
temporary surcharge. The
surcharge is additional 10% for each
2 years for the one year not
enrolled. A person 2 years late
enrolling-pays 20% more for 4 years.
7. Divorced spouse are eligible if:
i. Not remarried
ii. Original marriage lasted at least 10 years.
iii. SS spouse may remarry
iv. A divorced spouse may not be
eligible for Medicare if not covered
by SS and marriage lasted less than
8. End stage renal disease and persons not 65 but
who have received
24 months of disability benefits are also
B. Part B-financed by premium payments and
1. A voluntary purchaser of A must buy B
2. A voluntary purchaser of B does not have to
3. Those eligible
i. Eligible for A
ii. US Citizen age 65 not eligible for A
iii. Resident alien in the country at least 5
4. Premium is equal to 25% of the actual cost.
5. Late enrollees pay a permanent surcharge of
10% for each 12 months late.
1. Age 65 and receiving SS-enrollment in A is
2. B-if enrolled in A-is automatic. To
not be enrolled, a person must dis-enroll
3. Age 65 and not receiving SS-person
must affirmatively enroll. The period is the
7 month period commencing with the 3 months
before attaining age 65.
4. Failure to enroll during the period results in
an inability to enroll
until the next open enrollment period, the
following 1/1-3/1 subject to
5. Part B tracks Part A.
B. Coverage periods
1. If enrolled prior to eligibility date,
coverage commences on eligibility date. If
late, first of the month next following
3. Coverage under part A-TREATMENT MUST BE
REASONABLE AND NECESSARY.
1. Semi private room unless none are
available or treatment requires isolation.
2. Front end deductible of $716 (1995) for each
60 day spell of illness.
3. All costs except first 3 pints of blood and
4. First 60 days in full.
5. 61-90 day subject to a per diem deductible =
1/4 of the deductible.
6. Additional life time reserve of 60 days with a
per diem deduct =1/2
of the deductible.
1. Must be Medicare approved SNF.
i. Quality of care and staff
ii. Must have a transfer agreement with a
iii. Must be participating with Medicare
2. Admission must be with 30 days of a hospital
3. Admission in hospital must be at least 3
4. Patient must need and MD must certify
that patient requires SNF treatment. CANíT
BE PURELY CUSTODIAL. MUST BE SKILLED CARE.
5. 100 days total
6. 20 days in full
7. 80 days with a per diem deductible of 1/8 the
C. Home Health Care
1. Must be unable to leave home w/o assistance.
2. Rarely leave home.
3. Subject to a treatment plan by an MD that is
verified every 60 days
4. Paid in full.
5. Includes all services except:
i. 24 hour RN coverage
iii. Rx at home
iv. Homemaker care
D. Hospice care
1. Must be certified as terminal with 6 months to
2. Paid in full except
i. 5% or $5 per Rx
ii. Patient must pay 5% of respite care.
4. Coverage under Part B
A. Scope-In-patient MD charges, DXL, office
visits, RX that canít be self
administered, SSOs. Home Health Care if not
enrolled in Part A. Out patient
transfusions and ambulance if medically
necessary between home and facility.
B. Financial responsibility of Patient
1. $100/AC/CY deductible with 80-20 co-pay and
not out of pocket cap.
2. Medicare determines R & C.
3. Participating MD-R & C including co-pay.
4. Non-participating MD-115% of R & C but no
balance billing beyond 115%.
5. DXL paid at 100%-no deductible.