FIRED!: Protect Your Rights & FIGHT BACK If You're Terminated, Laid Off, Downsized, Restructured, Forced to Resign or Quit

By Steven Mitchell Sack

In "FIRED!" nationally known workplace attorney Steven Mitchell Sack (The Employee's Lawyer) has created a first-aid kit for surviving a firing. With over 41 years experience, Mr. Sack gives you the information and power you need to fight back, cut a deal, stand up for your rights, and land firmly on your feet.

Complete with up-to-date sample forms, letters and legal documents, "FIRED!" tells you in clear language what to do, what to ask for and insist on, and how to protect your rights if you are let go or forced to resign, feel you have been unfairly or illegally fired, exploited in any way or quit. The book will not only save you money and increase your termination-benefits, it will also save you time and your sanity so you can get on with your life.

He tells you in clear language what to do, what to ask for and insist on, and how to protect your rights:

-- How to negotiate and receive maximum severance pay, health insurance, and other benefits you deserve

-- What to do if you are discriminated against or harassed

-- How to fight back if you are terminated for any reason

-- Steps to take if you resign or are fired

-- Actions to take if you see layoffs coming

-- Protecting your reputation and favorable job references

-- Hiring the right lawyer – or winning a case in court without one.

Don't let your bosses catch you unprepared. With this book you have Steven Mitchell Sack, The Employee's Lawyer, always on call to give you the professional edge. Know your job rights and fight back if you are FIRED!

• Language: English
• Publisher: BookBaby
• Release date: May 20, 2022
• ISBN: 9798985790627

Book preview

INTRODUCTION

WHY YOU NEED THIS BOOK

This book was written to save you money and aggravation.

It is hard to believe that more than 41 years have passed since I began practicing law in 1980. In those days the law generally favored employers when it came to resolving employment disputes. It used to be that employers could fire workers with little fear of legal reprisal. However, more and more terminated executives and employees are fighting back. Many important and favorable laws have been enacted to protect workers since I started practicing labor and employment law. This book will discuss some of these laws and how they benefit you. Terminated workers in the distant past typically bowed their heads and shuffled their feet out the door after hearing they had been fired. Now, most terminated individuals are questioning those decisions and regularly negotiating better severance packages and post-termination benefits.

Statistics from my own law practice bear this out. I have had the privilege of representing thousands of terminated executives and employees during my career. Most of the time I have been able to obtain greater financial benefits and favorable non-financial changes to language in the separation agreements clients are required to sign. I continuously ask myself why this is so. The answer is that employers are often fearful of the negative publicity, not to mention potential legal exposure, that a terminated individual can bring if the matter is not settled with a signed release as part of any severance negotiation.

I compare a job to a romance. Companies often woo applicants with promises of security, fulfillment, and riches. Then, when the honeymoon is over, even qualified people find themselves being treated unfairly. Many employees are not promoted, despite doing good work, because they are women, are perceived as being too old, or belong to a minority group. Many others are fired for no justifiable reason. Still others fail to receive anticipated financial benefits, including accrued vacation pay, overtime, commissions, earned bonuses, promised raises, expenses, or severance pay. Some unfortunate executives are fired right before qualifying for a pension, profit sharing, or stock options.

If that happens to you, don’t despair. You may have the power to change that by reading this book.

Suppose you are concerned about keeping an important job, especially after receiving a subjective and unfavorable written warning. If you are close to retirement, what steps can you take to reduce the chances of losing a large pension or equity benefit soon to vest? Is it better to resign from a job than be fired? How do you evaluate the merits of an initial severance package? What are the proper steps to take to financially increase an employer’s offer when you are forced to depart?

Like most Americans, you probably know little about the way the law affects your life. But without this knowledge, there is a good chance you will be exploited, especially in your employment and business dealings.

Most people are not aware of the rights they do possess and how to use them effectively. But knowing the right moves to make can protect you in many ways. In addition to achieving greater financial success, you may actually feel better knowing that you took positive steps to right a workplace wrong. By questioning the firing and demanding more benefits, or by anticipating a layoff and acting properly, you can gain enhanced financial benefits and the confidence to look for and find a new job.

An executive once consulted me for advice. She worked for a large publishing company for almost eight years and was burned out. She felt her efforts were not appreciated and her career with the firm was going nowhere. This was confirmed when she had been squeezed out of a promotion by a younger, unqualified associate the year before.

Frustrated, the client told me she was planning to throw in the towel and resign. I strongly advised her not to do this. I told her that by resigning she would forfeit a large amount of severance pay and other benefits she deserved for her years of loyal and dedicated service.

Instead, I advised her to schedule a meeting with management to discuss why she was unhappy with her job and how her confidence might be restored. We rehearsed what she should say and how she should respond tactically to issues the company would raise at the meeting.

The result? Not only did my client get to leave the company with dignity and on her own terms, but she received eight months’ severance with full benefits. During the time she was unemployed, she started her own business and became independently successful with the help of the financial security derived from her severance package.

This executive’s experience is not unique. Although no one should take a job and start anticipating an eventual firing, this book explains the steps you can take during your working years with a company that will help you in the event that you are someday fired. It gives you the information you need to attempt to obtain money when you have been wronged and the best possible termination agreement to sign when you are fired. Extra financial benefits can help you immeasurably until you find a new job.

A PERSONAL EXPERIENCE

I was fired by a company in my first job out of law school after working only a few months. The manner in which I was discharged was vicious. Despite thinking (and being told) that I was doing an excellent job, I was called into the president’s office and suddenly terminated. No reason was given for the firing. I later learned that the decision was political and that a vice-president feared I was being groomed to replace him.

I was offered two weeks’ severance and told to clear out my desk, return company property, and vacate the premises immediately. I was so shocked by the news that I accepted what the company offered and left.

Later, because it had taken me quite some time to find that job and because I was furious at the company’s behavior, I decided to start my own law practice and help others who suffer similar mistreatment.

My career was fueled, in part, by a book I wrote in law school called The Salesperson’s Legal Guide, published in 1981. Additionally, I was fortunate to be interviewed in 1984 by the Wall Street Journal for an article about the rights of terminated managers and workers. Over time, dozens of terminated employees who read the article called me to find out if they had any legal rights after being fired; some of them retained me to represent them in negotiations with positive results.

After that article, television and radio appearances throughout the country, and seminars I began conducting, I started negotiating severance packages and post-termination benefits for many clients and was pleased to learn that cash settlements and other perks were often obtained as a result of my intervention. This convinced me that most private employers fear the repercussions after terminations and are willing to explore amicable solutions to avoid additional legal expenses, bad publicity, and potential liability.

I then wrote The Employee Rights Handbook. The success of that book and the fact that many interviewers were interested in my comments on effective strategies to consider taking after a firing caused me to write Fired! which is devoted to the unique problems and aspects of separations, layoffs, discharges, firings, and resignations.

The information in this book will provide you with a better understanding of your employment rights and make you better equipped to work with a knowledgeable employment lawyer after a firing. If litigation becomes necessary, your chances of success and the value of a claim can increase because you will recognize potential exploitation and know how to begin to protect your rights.

THE LAWYER’S VIEWPOINT

One of the most frustrating aspects of practicing law is telling clients that they waited too long before taking action or that a case could have been worth a great deal of money if the right moves had been made. In fact, millions of dollars are forfeited each year by workers who have valid claims but fail to take appropriate or timely action. Conversely, significant damages can be obtained by taking the proper steps.

As an example, a New Jersey judge upheld a $7.1-million sex discrimination jury verdict against a company after the plaintiff successfully alleged that senior managers removed her from accounts she helped build and gave them to male brokers. After 12 years with the company, the plaintiff was accused of poor productivity and fired. The verdict included a $5-million punitive damages award. You will learn the kind of action this plaintiff took to preserve and strengthen her case before filing a claim.

Scott A. Lucas, Esq. and I obtained a $6.2 million award from a Bronx, New York jury on behalf of three former employees who were sacked from administrative jobs after becoming pregnant. According to Mr. Lucas, the verdict sends a message to all employers that they cannot harass and fire women for being pregnant.

In another case, Mr. Lucas and I obtained a favorable decision for waiters who were denied restaurant service charges added in lieu of a traditional tip, thus making it harder for restaurants and caterers in New York to keep gratuities intended for their wait staffs. The New York Court of Appeals case was Samiento v. World Yacht, Inc. 10 N.Y.3d 70 (2008).

These and other cases I have worked on enabled me to adopt many useful strategies you can follow. The information can be quite useful when, after a traumatic firing, you don’t know where to turn. All the subjects covered were chosen because they are important areas where people are frequently misinformed. And the glossary at the end of the book will help you understand the meaning of many legal terms and concepts and apply them properly.

Although Fired! is not meant to replace a lawyer, it will help you understand when you have a problem that requires a lawyer’s assistance. You will learn how to eliminate potential misunderstandings with your lawyer. Information in the book will tell you how to make an employment lawyer work effectively on your behalf, as well as suggest courses of action to take before consulting a lawyer; such moves may prove invaluable to your lawyer once you have retained one.

It doesn’t matter whether you have been intimidated or discouraged in the past by the legal process or disappointed with other self-help legal books. If you keep an open mind when reading this book, I believe you will find it to be a valuable resource.

Throughout the text, you will be shown how to complain effectively and assert your rights, no matter what your problem. You will learn about a variety of strategies that will enhance your claim in small claims court, arbitration, or mediation, and you will discover effective ways to successfully argue your case with or without a lawyer before an appropriate state or federal agency, such as an unemployment insurance board or the Equal Employment Opportunity Commission (EEOC).

Lawyers have been providing successful clients with information on how to take the proper steps to prove and maximize a claim ever since the profession began. That is what preventive law is all about. Just as businesspeople keep lawyers on retainer to obtain ongoing advice, you, too, will now have access to some of this information.

This book provides you with much of the practical information my clients receive at a fraction of the cost. Thus, keep this book in an accessible place, refer to it to avoid problems before they arise and read the applicable sections before you are fired or decide to resign.

The benefits of applying this information can be significant. The following true stories demonstrate why.

A client attended a lecture I gave in Las Vegas to members of his business association. The man introduced himself after I finished speaking. He told me he had recently been fired from his job, and based on something he heard me say, believed he had been treated unfairly. After investigating the facts, I determined that he had been fired illegally to deprive him of the commissions he would earn from a large contract he was on the verge of closing with a major customer. I told him I was not surprised by the company’s actions, since it was another example of how some employers choose to exploit workers for their own gain and that I witness such conduct daily. We also discussed how he, like hundreds of thousands of other workers annually, are victims of a cold-blooded mentality in the business world that has unfortunately become commonplace in American society.

After learning that the customer had signed a contract and paid for the large order, I contacted the ex-employer and demanded that my client receive his expected commission plus a substantial amount of previously due commissions and post-termination benefits.

Within four weeks I settled the matter for $80,000 and the client was amazed by the size of the settlement and the speed with which it was obtained.

In another case, I obtained a cash settlement of $37,500 for a man who was fired after being falsely accused of drinking too much at lunch.

And in another case, an executive with nine-plus years of accumulated work time was fired suddenly one late November day. During negotiations I determined that the firing was unjustified and done to deprive him of a large year-end bonus he was anticipating and a pension due to vest at the beginning of the following year. The company eventually paid my client’s bonus of $50,000, severance pay totaling $75,000 (representing one month’s salary for each year of service), and agreed to keep him on unpaid leave for the duration of the year so that he would qualify for the pension that was about to vest.

The experiences of these individuals are not unique. People throughout the United States can often obtain recompense, provided their eyes are open. It is also important to maintain your composure and dignity during this unsettling time, take proper steps to ensure that you do not receive negative references from ex-employers, and promptly retrieve your personal property after a discharge.

There are three simple rules to follow to help you survive in corporate America these days: be flexible, be prepared, and be informed. Experts suggest that when you are fired, it can take approximately one month for every $10,000 of compensation you were earning to procure suitable new employment.

Fired! can help you protect your legal rights and recover money when you need it the most besides restoring your confidence and pride when you are treated unfairly or illegally.

Knowledge is power, but if you don’t know that you are being exploited or mistreated, you can’t or won’t fight back!

Steven Mitchell Sack, Esq.

Merrick, New York

PART I

Determining When

You Are Being Treated

Unlawfully

1

AN OVERVIEW OF

CURRENT LAW AND TRENDS

Being fired is never good news, yet many large companies throughout the United States continue to announce major layoffs. In a layoff (also called a downsizing or a restructuring), many members of a company, a division, or a department are terminated en masse due to the company’s perceived financial constraints, budget considerations, or merger with another company. These layoffs differ from one-on-one firings.

In the past, younger workers with less seniority were generally the first to be laid off in a corporate downsizing to reduce payroll costs. But because younger workers were typically at the low end of the wage scale, companies learned that they would have to make substantial cuts to achieve meaningful savings. They realized that offering early retirement and severance packages to higher paid older workers could more effectively reduce costs.

Although this tactic may appear to some to be discriminatory because it affects older workers disproportionally, federal and state discrimination laws often approve early retirement programs because they are perceived as an offer of an employee benefit, which employees have the choice of voluntarily accepting or not.

Companies learned how to survive charges of discrimination provided they based reduction-in-force decisions on legitimate business reasons and used objective criteria when selecting the employees to be discharged, such as demonstrable economic necessity, performance reviews, and productivity evaluations. As a result, it is generally difficult for employees to prove that they were downsized as a result of discrimination on the basis of age, gender, race, or some other form of unlawful discrimination.

Many individuals who are offered early retirement packages want and need to continue working and don’t consider the package a gift. They face a dilemma: If they refuse the offer, they feel that the next step, in six months or a year, will be a notice that their job is being eliminated with no offer of enhanced benefits. Wouldn’t it be better to accept the package now?

Companies also recognized that if they needed to hire more workers after business conditions improved, they could do so at less cost by hiring contingency workers. These are part-time, temporary, freelance, and contract workers who agree to accept less pay and job security and a lack of health insurance and other benefits because, in today’s job market, many are unable to find permanent full-time work. Commentators suggest that this development has significantly altered the landscape of the U.S. working world. The net result is a business climate that can seem cruel.

Furthermore, what is often not considered is the effect that layoffs, firings, and cutbacks have on the people that remain at a company. When workers feel the process was handled tactlessly or cruelly, they are certain to wonder if they will be the next asked to leave. This climate of uncertainty can demoralize entire departments.

People will always be fired for the usual reasons, such as poor performance, habitual lateness, excessive absences, insubordination, or disobeying work rules, regulations, and policies. What has changed the rules of the game, however, is being fired because of corporate greed, to satisfy a manager’s desire to cut costs, general business conditions or even extraordinary events such as the COVID-19 pandemic.

THERE IS AN UPSIDE

While these developments are depressing, you should not despair. Some of my clients, out of frustration and anger, cry when they relate the facts of their firing to me in my office. This is understandable. Since most of us equate self-worth with our work, it’s not surprising that losing a job can cause anxiety, self-doubt, depression, and even mental illness. But the experience doesn’t have to leave you shattered.

Once you deal with the initial pain, you can use your time wisely to examine your goals, discover what you really want from a career, and find a new job that makes you happy. Being fired can be a benefit both financially and personally in many ways, as I will explain later. For example, after negotiating a large severance package for a client, I sometimes recommend that he or she not begin a job search immediately, but rather travel for three months or take the summer off. Later, after they have spent rewarding time smelling the roses, many clients have thanked me for this advice.

While large numbers of corporate layoffs continue, the law fortunately has changed for the better in many respects. Up until 20 years ago, employees had few options when they received a pink slip. This was because of a legal principle called the employment-at-will doctrine, which was generally applied throughout the United States. Under this rule of law, employers hired workers at will and were free to fire them at any time with or without cause and with or without notice. From the nineteenth to the late twentieth centuries, employers could discharge individuals with impunity for a good reason, a bad reason, or no reason at all with little fear of legal reprisal.

However, some state legislatures began scrutinizing the fairness of this doctrine. Courts began handing down rulings to safeguard the rights of nonunionized employees. Congress passed specific laws pertaining to civil rights and the freedom to complain about unsafe working conditions.

The net effect has been a gradual erosion of the employment-at-will doctrine in many areas. Now, in most states, there are probably many exceptions that make it illegal for you to be fired. For example, in New York you cannot be legally fired for numerous acts including filing a workers’ compensation claim, fulfilling jury duty, taking time off to serve in the military, voting, or taking time off pursuant to the Family Medical Leave Act (FMLA). The New York Equal Pay Act has been expanded to include all protected groups, not just women, from complaining about unequal wages. Many anti-discrimination laws now protect LGBTQ workers against sexual orientation discrimination. Other public policy exceptions make it illegal to fire workers who participate in legally permissible political activities such as running for office, campaigning for a candidate, and participating in fund-raising activities for a candidate or political party. Also, in some states you cannot be legally fired for engaging in a legally permitted recreational activity off the company’s premises, such as consuming alcohol, smoking cigarettes, or sky diving.

As a result of the passage of the federal Worker Adjustment and Retraining Notification Act (WARN), before being let go you must be given at least 60 days’ notice or comparable financial benefits (i.e., at least 60 days’ notice pay) if you are part of a layoff that affects 50 or more workers at a plant or company office. Some states expand such notice requirement to 90 days.

Some courts have ruled that statements in company manuals, handbooks, and employment applications constitute implied contracts that employers are bound to follow. Thus, employee handbooks should be studied to determine how (if at all) they impact your rights.

Other states now recognize the obligation of companies to deal in fairness and good faith with employees. This means, for example, that they are often prohibited from retaliating against employees for opposing or complaining about what the employee reasonably believes to be unlawful discrimination or for reporting suspected financial improprieties or unsafe working conditions. In some cases, the obligation of good faith and fair dealing can operate to prevent companies from denying individuals an economic benefit (a pension, commission, bonus, etc.) that has been earned or is about to become due.

A few states are even allowing wrongfully terminated workers to sue in tort (as opposed to asserting claims based on contract) and recover punitive damages and money for pain and suffering arising from a firing. Some employees who have sued under tort theories for wrongful discharge have recovered seven-figure jury awards as a result. Some innovative lawyers have even asserted federal racketeering (RICO) claims, seeking criminal sanctions and triple damages against companies. This is in addition to asserting fraud and misrepresentation claims against the individuals responsible for making wrongful-termination decisions.

Various commentators are now suggesting that in situations where employers manipulate employees unfairly, judges and juries are going to find a way for the wronged employee to win. Thus, given the changing legal climate, it is understandable that more people are seeking information about their rights and are fighting back after being fired. They are requesting enhanced benefits after a one-on-one firing or major departmental layoff and are often receiving greater severance pay than the company’s initial offer. As a result of successful negotiations, they are also often obtaining accrued bonuses, continued medical, dental, and life insurance coverage, unemployment benefits, résumé preparation and paid outplacement guidance while looking for a new job, a mutually acceptable cover story to tell prospective employers, and favorable letters of reference.

Mismanaging the termination process can result in hard feelings, loss of company prestige from bad publicity, a decline in loyalty and morale within the firm, difficulty in attracting new talent, more turnover, and litigation. As a result, employers are now beginning to see a clearer picture of what they are potentially up against when they handle terminations improperly.

Employers are being reminded to carry out terminations in a discreet, consistent, and reasonable fashion to avoid charges of defamation and/or discrimination. This means, for example, taking all precautions not to embarrass terminated workers in front of co-workers. Companies are also being advised not to fire employees before vacations, during company holiday parties, or in the presence of a large group of colleagues.

Because a job is closely linked to a person’s identity and self-respect and most terminated workers experience feelings of humiliation during a discharge, on-site training is being conducted to help employers understand more clearly how to fire people in a proper and humane manner. And due to stronger sexual harassment laws, many states now require annual anti-harassment training sessions for all employees and supervisors with adverse consequences to employers who fail to conduct them.

In light of the vast number of employment-related lawsuits filed these days, companies are reminded that being fired under humiliating or unfair circumstances is generally devastating to an individual and often brings out vindictive tendencies, which increases the odds that he or she will file a lawsuit to regain a sense of self-respect.

Defending against a wrongful-discharge claim brought by a former employee can cost an employer hundreds of thousands of dollars in attorney’s fees and lost productivity time. This does not include an award for lost wages, statutory damages, and attorney’s fees to successful plaintiffs who sue for discrimination, retaliation, unpaid overtime or unpaid minimum wages. And there is often the possibility that huge punitive damages may be imposed by a jury for especially egregious and outrageous acts.

One reason for the dramatic increase in litigation is that lawyers representing employees have discovered that sympathetic plaintiffs can be very appealing to juries in such disputes. Average jurors are often lower-level employees themselves. Given the chance, jurors may be likely to side with an employee against a large corporate employer that has acted unlawfully.

The number of discrimination cases litigated each year has grown dramatically due to the high stakes. Federal anti-discrimination laws allow for jury trials as well as punitive and compensatory damages, making people more inclined to sue. The ADA enabled people who were previously fired as a result of a physical or mental condition and excluded from the legal process now eligible to sue. The current litigation explosion has also been fueled by an increased public awareness of large jury verdicts awarded to women who complain that they were mistreated or fired after reporting incidents of discrimination and/or sexual harassment.

As a result of the #Me-Too Movement, many states including California, New York and New Jersey, have banned certain non-disclosure agreements in sexual harassment claims with the effect of not allowing perpetrators to simply buy a victims’ silence. Such laws have also given women more confidence to come forward, report, and file charges of sexual harassment with less fear of intimidation, negative reprisal, and retaliation.

In another sign of progress, The Lilly Ledbetter Fair Pay Act strengthened worker protections against pay discrimination. In fact, most companies now recognize that pay equality is fundamental to their diversity and inclusion policies, not only for women but minority workers as well.

TAKING CONTROL OF THE REST OF YOUR LIFE

In Chapters 2 through 5, you will learn how to recognize when you are fired illegally. This is the first step to understanding when you have been exploited and collecting what is due. Chapters 6 through 9 stress negotiating strategies to maximize severance and other termination benefits. You will learn the right questions to ask and points to make and have clarified at the termination or exit session to increase what you can obtain. Samples of actual letter agreements are included in Chapter 9 to illustrate how you can confirm the deal in writing after it is accepted. You can use these letters as models and tailor them to your own situation.

Additionally, you will learn what to look out for when requested to sign a release or settlement agreement prepared by your employer.

Although it is unlikely that you will succeed in getting your job back after a firing, you can discover (in Chapters 8 and 9) some strategies aimed at getting a better severance package. You will also learn the steps to take when a satisfactory settlement is not achieved through informal means. If you are victimized and are unable to obtain benefits from your ex-employer and cannot afford a lawyer, you will learn how to complain to various federal, state, and local agencies. In addition, you will be advised of ways to collect evidence and strengthen a claim before you retain a lawyer.

Chapter 10 will help you learn how to resign from a job properly and gain unemployment benefits after a firing. In Chapters 11 and 12, you will become familiar with common post-termination problems. These include protecting your good name and reputation when the employer gives you a poor reference and attempting to stop former employers from enforcing covenants not to compete and other restrictive barriers to future employment.

Chapter 13 discusses employment litigation and alternative forums to seek relief including arbitration, mediation, small claims court, pro se representation, and class action lawsuits.

Chapter 14 gives you valuable information on how to find and work with the right lawyer to achieve your goals.

All this information will help you take control and seize the opportunity to pick up the pieces of your career. I sometimes remind depressed clients of a personal problem I had to overcome that was far more serious than the sudden loss of a good job. My problem was a life-threatening illness I had to deal with to survive as a young man in my late 30’s. Going through that gave me special insights when facing major obstacles, overcoming them, and moving forward with a positive attitude.

Despite all the negative and pessimistic publicity about firings and downsizing, the rules of the game have favorably changed for terminated employees in certain instances. Thus, keep your chin up and plan ahead. Don’t get down since there is no use crying over spilled milk. Instead, make a calm and well-informed decision about how to make the best of a bad situation. The following pages will show you how.

2

FIRED BECAUSE OF YOUR AGE

Eric was a 64-year-old manager who was fired from his job after 15 years. He immediately sued the company and its president for age discrimination. The employer argued that his layoff was due to a budget cut. Eric argued that after the appointment of a new boss several years earlier, older workers were systematically replaced and senior positions filled with younger workers.

A jury ruled in his favor. It also found intentional discrimination in the department’s failure to rehire Eric for a position created several months after his termination. The job was filled by a 36-year-old (arguably) less-qualified individual, which the jury found to be evidence of retaliation against Eric for having pursued an age discrimination claim.

Federal anti-discrimination laws apply anywhere you work or live in the United States, even in employment-at-will states. If you believe you have been fired from a job primarily because of your age, gender, sexual orientation, race, national origin, religion, or disability, or in retaliation for alleging discriminatory mistreatment, you may be able to recover damages under federal, state, and local anti-discrimination laws enacted to help you recover damages. You have rights, and usually those rights cannot be waived.

This chapter discusses how to recognize if you have been fired illegally as a result of age and what to do about it. Related issues discussed include progressive discipline and warnings, failure to promote, seniority rights, forced retirement, the impact on retirement plans and benefits, and reductions in force. You will also learn whether, pursuant to the federal Older Workers Benefit Protection Act, waivers you signed after a discharge legally preclude you from suing the employer for age discrimination.

AN OVERVIEW OF DISCRIMINATION LAWS

The Civil Rights Act of 1991 implemented a series of sweeping changes in federal anti-discrimination laws. The legislation expanded procedural options and remedies available to workers and overruled a series of important U.S. Supreme Court decisions that limited employees’ legal recourse. In doing so, Congress amended six different statutes that together prohibit discrimination based on age, race, color, religion, gender, national origin, and disability. Those statutes are Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act of 1990 (ADA), the Vocational Rehabilitation Act of 1973, the Age Discrimination in Employment Act of 1967 (ADEA) the Civil Rights Act of 1866, and the Civil Rights Attorney’s Fee Awards Act of 1976. Who is and is not covered under each of these laws differs and is not so easy to define. However, most employers are covered by these laws although some smaller employers are not. For example, employers with less than 15 employees are not covered by Title VII and private employers with fewer than 20 employees are not covered by the ADEA.

Title VII prohibits discrimination in all aspects of the employment process, including compensation, assignment, classification of employees, demotions, transfers, promotions, wages, working conditions, recruitment, testing, use of company facilities, training programs, fringe benefits, retirement plans, disability leave, hiring, and discharges. An illegal act can be committed by any member of an employer’s staff, from the president down to a supervisor or receptionist.

Retaliation and on-the-job harassment are also prohibited. This means that if you file a charge of discrimination in good faith, you cannot be fired, demoted, or reassigned while the case is pending. However, if you knew the claim had no merit and filed it in bad faith, you can be fired legally. (Protection from retaliation is covered in Chapter 4.)

Many states have enacted even stronger discrimination laws with greater coverage and penalties than federal law. For example, many small employers not covered by Title VII (i.e., those employing less than 15 employees) are covered by state law. Some local laws offer even greater protection; for example, age discrimination protection may apply to the young as well as those who are over 40.

COUNSEL COMMENTS: A question frequently asked of me is: Which law takes precedence? The answer is essentially the law that is the strictest and most inclusive. To ensure proper protection of your rights, try to be familiar with federal, state, and local laws. If there is a difference in coverage on the same subject, seek to enforce the law that is the most favorable to your situation. To learn whether you have greater protection and how it applies, contact an appropriate state or city agency for further details, or speak to a knowledgeable employment lawyer before taking action.

In cases where intentional discrimination is alleged, Title VII also authorizes jury trials, and, if the plaintiff prevails at trial, lost wages (past and future), compensatory damages of up to $300,000 depending on the employer’s size, payment of attorney’s fees, and punitive damages.

Compensatory damages are defined as money paid to compensate individuals for emotional pain and suffering, inconvenience and mental anguish, loss of enjoyment, and physical pain and suffering. Compensatory damages are typically available only for intentional discrimination and unlawful harassment, and do not apply where a job practice is not intended to be discriminatory but nonetheless has an unlawful disparate impact on persons in a protected class, such as workers over 40.

With respect to age discrimination practices, many believe that ageism is rampant in corporate America. One reason is that more Americans plan to work past age 65 than ever before, causing a larger proportion of older employees. Another reason is that age bias laws are viewed as less protective than other anti-discrimination laws, so some companies believe they can get away with it. But the penalties for practicing intentional age discrimination can be quite harmful to employers. For example, it was reported in 2019 that Google settled a case for $11 million after it was accused of discriminating against applicants over 40 who sought engineering jobs with the company.

Recognizing the significance of work-related age discrimination, the House of Representatives passed legislation in 2020 entitled the Protecting Older Workers Against Age Discrimination Act (although the bill has not become law yet) making it easier for complaining parties to rely on any type or form of evidence when presenting their claims and reducing the burden of proof necessary to prevail in an age discrimination case.

As you will learn in this chapter, recognizing and fighting back against age discrimination is not always easy, especially when management-level employees have not made ageist statements, remarks or threats; when there is no direct evidence; or when the claimant is unable to demonstrate statistical proof that the company had a practice of discrimination against workers in his/her protected class.

Proving a claim often depends on the unique facts of the case. For example, suppose a company fired a 61-year-old salesperson because he wasn’t meeting quota. That sounds like a legitimate reason, right? But what if the company’s sales were down in many of its territories? Were younger salespeople fired as well, or were they merely given a warning and placed on probation?

Some commentators believe that a ruling by the Supreme Court in 2009 has made it more difficult for older plaintiffs to prevail in alleged violations of the Age Discrimination in Employment Act (ADEA). This is because federal law now requires plaintiffs alleging age discrimination in a firing case to prove that their age was the but for reason for the termination, rather than merely being an important factor in the firing. This subtle distinction is extremely important and raises the burden of proof for employment lawyers representing plaintiffs.

Federal and state discrimination laws are designed to promote employment of older persons based on their abilities, irrespective of age. The most important federal law, the Age Discrimination in Employment Act, protects workers between the ages of 40 and 70 from being subjected to adverse employment actions (e.g., being fired, refused a job, forced to retire, or treated unfairly with respect to pay, promotions, benefits, health care coverage, retirement plans, and other employment opportunities) because of age.

The following thumbnail sketch outlines what employers can generally do under the ADEA and state discrimination laws pertaining to age:

■Fire older workers for documented, inadequate job performance or good cause (e.g., excessive tardiness or absences)

■Fire older workers to save money

■Fire older workers who are more highly compensated

■Entice older workers into early retirement by offering additional benefits, such as bigger pensions, extended health insurance, or substantial severance packages, that are voluntarily accepted

■Force employees to retire if the job calls for physical fitness (e.g., airline pilots or police officers) and age is recognized as a bona fide occupational qualification (BFOQ) factor in fitness and job performance. (Note: An employer that sets age limits on a particular job must be able to prove the limit is necessary because a worker’s ability to adequately perform that job substantially diminishes after the age limit is reached.)

■Lay off older workers when younger employees are treated similarly

■Make adverse decisions provided the acts are taken as a result of a reasonable business decision that does not have a discriminatory impact on all older workers at the company.

TIP: Some employers may legally discriminate against older workers when they hire independent contractors (who are generally not protected) or employ fewer than 15 employees and there is no state or local anti-discrimination law to protect the rights of older workers. Always check the law of your state and locality to see what protection is available if you work for a small employer and are misclassified as an independent contractor. Since some state (or local) agencies process discrimination cases more quickly than the EEOC and provide greater damages and remedies under applicable state (or local) law, consider pursuing your rights with a state (or local) agency or a state court (instead of the over-burdened federal EEOC) after discussing your options with an employment lawyer.

The following actions are generally prohibited by federal and state law:

■Denying an older applicant a job on the basis of age

■Imposing compulsory retirement by a certain age (except in very limited circumstances)

■Forcing older employees into retirement by threatening them with termination or loss of benefits, unless the company has instituted a valid seniority system or retirement plan

■Firing older workers because of age

■Denying promotions, transfers, or assignments because of age

■Penalizing older employees with reduced privileges, employment opportunities, or compensation because of age

■Harassing older workers because of their age by, for example, giving them burdensome work, requiring them to work overtime, or ridiculing them in front of other employees

You may be able to recover significant damages if you receive unfair treatment because of age. These may include job reinstatement in the event of a firing, wage adjustments, back pay and double back pay, future pay, promotions, recovery of legal fees, compensatory damages up to $300,000 depending on the size of the employer, and punitive damages. Recourse can also include the institution of favorable company policies on behalf of fellow older employees, counseling, and enhanced outplacement assistance.

COUNSEL COMMENTS: Whenever an older (over 40) employee is fired and consults me, the basic issue I must decide is whether the company’s decision was made because of age or was the result of a reasonable nondiscriminatory business decision.

Because direct evidence is