Law School Resources

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Law School Resources

Elder Law

I. History

1. 1967- Workers age 40+ protected from discrimination in:

A. Hiring

B. Termination

C. Compensation

D. Conditions of employment

29 USC ß 621 (b) "promote employment of older persons based on ability rather than age, prohibit arbitrary age discrimination

in employment"

2. 1974-Federal, state, local government ee's covered.

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 making"

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 ee's.

a. 20 or more ee's for each working day of the week-full time-for 20 weeks (not consecutive) in a C.Y.

b. P-T Ee's are not countable but if Er is subject to ADEA, P-T Ee's and temporary Ee's are protected.

TESTS ARE INDIVIDUAL AND FACT DETERMINATIVE. AN EE IF ER DICTATES TIME PLACE AND CONDITIONS OF EMPLOYMENT.

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 exclude protection.

Caruso v. Peat Marwick Mitchell

4. Domestic Ee's of foreign corp's covered.

5. U.S. Citizens of domestic corps over seas are covered.

6. Unions with a hiring hall or an exclusive CBA of 25 Union Ee's

III. EXCLUDED

1. Bonafide executives and decision makers. Look to ability to hire or fire or guide the corp.

2. Non-forfeitured Retiree Benefits of $44,000/annum.

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.

IV. LITIGATION

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. EVIDENCE

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.

 

B. NO-EVIDENCE

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 younger person.

***NOTE THE HIRING OF A YOUNGER ADEA COVERED EE DOES NOT EXEMPT ER***

If established, burden of proof shifts to the employer.

THE EMPLOYER CAN ONLY REFUTE REFUSAL TO HIRE OR TERMINATE IF THE ER CAN DEMONSTRATE THE ACTION WAS NON DISCRIMINATORY

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 A PRE-TEXT

IF SO-TRIER OF FACTS DETERMINES THE VALIDITY OF THE CLAIM.

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

or

2. Demonstrate business reasons and younger Ee's

did not replace.

V. DEFENSES

1. RFOA-Reasonable Factors Other than Age

a. Personality conflicts

b. Insubordination

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 public safety

and policy is a factor.

A P may counter other than public safety by arguing individual testing.

IN GENERAL

1. Er's are given great latitude to operate business.

2. Courts will not interfere in the dumping of EXCESS Ee's.

3. There is no affirmative requirement to hire.

4. No duty to provide favorable treatment.

5. THE ONLY PROTECTION IS AGAINST AGE DISCRIMINATION.

 

 

 

VI. ENFORCEMENT

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/4 litigation.

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.

VII. REMEDIES

1. Back pay.

2. Reinstatement.

3. Injunction.

4. Attorneys Fees.

5. No pain and suffering.

6. No punitive damages.

7. Ee has duty to mitigate. Burden is on Er to show failure.

8. If willful-LIQUIDATED DAMAGES of 2X monetary loss.

VIII. MISCELLANEOUS

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 less benefits.

2. Er's may use voluntary retirement programs as long as truly

voluntary.

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.

SOCIAL SECURITY

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 INCLUDED.

***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.

EXCEPTIONS

i. Federal Employees prior to 1/1/84 except Congress

and judges.

ii. State and local government unless elected by the entity.

iii. Student employment by the student's college or university

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 INSURANCE AMOUNT.

1938 65 + 2 months.

1939 65 + 4 months.

1940 65 + 6 months.

1941 65 + 8 months.

1942 65 + 10 months.

1943-1954 66.

1955 66 + 2 months.

1956 66 + 4 months.

1957 66 + 6 months.

1958 66 + * months.

1959 66 + 10 months.

1960+ 67

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.

1917 1%

1917-1924 3%

1925-1926 3.5%

1927-1928 4%

1929-1930 4.5%

1931-1932 5%

1933-1934 5.5%

1935-1936 6%

1937-1938 6.5%

1939-1940 7%

1941-1942 7.5%

1942+ 8%

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 included

----->***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. Scope

2. Thresholds

3. Impact

4. Effect

VI. TAXATION

1. Provisional Income

2. 1ST Tier

3. 2ND Tier

VII. DISABILITY BENEFITS

VIII. APPEALS PROCEDURES

MEDICARE

1. ELIGIBILITY

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 limited benefits.

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 eligible.

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 enroll.

4. Federal Railroad Retirement Beneficiaries are also eligible.

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 10 years.

8. End stage renal disease and persons not 65 but who have received

24 months of disability benefits are also Medicare eligible.

B. Part B-financed by premium payments and Federal revenues.

1. A voluntary purchaser of A must buy B

2. A voluntary purchaser of B does not have to buy A.

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 years.

4. Premium is equal to 25% of the actual cost. ($46.10/1995)

5. Late enrollees pay a permanent surcharge of 10% for each 12 months late.

2. ENROLLMENT

A. Procedures

1. Age 65 and receiving SS-enrollment in A is automatic.

2. B-if enrolled in A-is automatic. To not be enrolled, a person must dis-enroll from A.

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

surcharges above.

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 actual enrollment.

3. Coverage under part A-TREATMENT MUST BE REASONABLE AND NECESSARY.

A. Hospitalization

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 TV.

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.

B. SNF

1. Must be Medicare approved SNF.

i. Quality of care and staff

ii. Must have a transfer agreement with a hospital

iii. Must be participating with Medicare

2. Admission must be with 30 days of a hospital admission

3. Admission in hospital must be at least 3 consecutive days.

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 hospital deduct.

 

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

ii. Meals

iii. Rx at home

iv. Homemaker care

D. Hospice care

1. Must be certified as terminal with 6 months to live

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. ...more