that’s just great -.-
It sure sounds like a case could be made for blatant age discrimination. Now how strong a case depends on the lawyer and history of the company. Certainly, the big multinational where I work takes special care of 50 year old+ employees specifically because they don’t want to be taken to court for age discrimination. In other words, there are more hoops to jump through to terminate someone older than 50 than say a 30 year old.
And the ages that the lawyers are warning managers are moving backwards for this very reason. It used to be “at 55” - but now we are warned to be careful anytime someone gets past 48 - especially if there is an age related benefit like a pension.
I, too, think that if this is this cut and dried, she should talk to another attorney. However, I also want to say that jobs do change over time and it is possible that she didn’t keep up with expectations, even if she was a stellar performer in the past.
I recall an employee once who was totally, brain-sludge useless in his industrial job. In the good old days when deadwood was carried, he got marginal jobs like refueling the equipment, general labour, etc. he was not even safe to take motorized equipment like forklifts. After more than 20 years of “Ok employee”, “good employee” he was sent to a work crew where the boss decided he could not tolerate this. The guy would leave the protection door to a large pit open - after 4 formal warnings (still not learning), he was fired. It did not help that he was weird, wore pantihose, had a ponytail and earned the nickname “Fifi”. He cleaned up for the union hearing, and the company was ordered to give back his job and pay him 8 months of back pay with comments about possible discrimination and how suddenly in 6 months with one boss he went from Ok to unacceptable performance. After that he was pretty much fireproof. They just waited for his 30-and-out retirement.
The biggest bolster for any such claim of age discrimination is a pattern. If you can find even 2 or 3 more people who were given the same treatment, then the pattern will be hard to refute. I suspect most of those people would be happy to repay the favour the company dealt them.
Even if the person had completely slacked off and failed to do an adequate job - if the “clean up deadwood” treatment is only given to the older employees, then it is age discrimination. If picky work reviews etc. are unfairly applied to one age group (or one sex or one race) over others, then it is in violation of civil rights. Even a memo saying “crack down on those 48-year-olds” if someone foolishly put it in writing (or fired some manager, who then was willing to repeat the details in court) is proof of deliberate intent to discriminate.
Seconded. I’d walk into the termination meeting with a box full of the awards she has earned and just set them out on the table, one by one.
She should see a lawyer who specializes in labor issues.
I am amazed that she turned down such a magnanimous offer: To actually *help *her find somebody to assist her to write a resume! Wowee! I bet they’d even let her use a company PC to do it on, too-whadya wanna bet?
hh
This is basically an Urban Legend. slash bogus excuse.
While it’s true that their experience rating will go up, it’s by a tiny amount, but the overall cost for her company could go down. The state rates for UI are on on a certain portion of each employees income, such as the first 6k, 7k etc. Each state has their own cutoff amount, and a minimum and maximum rate. Some states have much higher limits than others, which works out for a lower overall effect for the employer when there are layoffs.
It’s easier to show an example than talk about. Let’s say a company has 100 workers, and their portion of the state UI is 1% on the first $8,000.00 of each workers wages. That’s $80.00 per worker, for a total of $8,000.00 per year.
They lay 1 person off and their experience rating goes up by to 1.002%. Still the same $8,000.00 base. It now costs them $80.02 per employee per year, now numbering 99, for a new yearly total of $7,921.98. So yes, their experience rating cost is now higher, but their payment is lower. Less base salaries = less UI payment.
On the other hand, if your friend is at a small company and there have been massive layoffs, the company will be stuck paying the maximum rate anyway, so it’s not going to cost them an additional red cent to lay her off.
There are a lot of variables here that your friend doesn’t know in order to do the exact math, but chances are the “but their UI insurance will go up so they are trying to make me quit!” excuse is just that, an excuse.
I’m part of the older crowd and have made it my business to keep up with technology; but I can’t begin to tell you how many older people interviewed for an office support position where I work and had never used a scanner, didn’t know the first thing about Outlook, weren’t sure what Excel was, really clueless all around. Really took me aback.
She absolutely should not quit, and she should do nothing that would get herself fired, like not showing up for work because she’s afraid of her boss. If you quit, you’re not eligible for unemployment. If you’re fired for cause, you’re usually not eligible for unemployment.
And she should talk to another attorney, just because the first one gave her bad advice doesn’t mean the second one will.
It wasn’t so much that the attorney didn’t think she had a case, it was more that the attorney felt that there wouldn’t be enough money in it for him.
I’d be surprised if a wrongful termination case is one where it’s customary to work on a contingency fee, but I’m not a lawyer. Given there are possible favorable outcomes from those cases that don’t even involve any sort of financial settlement or judgment I’d think they would generally be handled by a more normal fee structure in which the attorney bills you for their time. Any law firm that stays in business is going to bill their time at an hourly rate that will turn them a healthy profit.
I had a slightly similar situation myself about 6 years ago. I’d been working for about 7 - 8 years for a major financial services company. I had just fine reviews all that time. Then one day they told me my position had been eliminated. They also gave me (the HR person said they were required to do so) a list of the sex and age of everyone else who was let go and similar stats for those who remained. Well, it seems they terminated the two oldest people in the department and the only woman (me). I spoke with a lawyer. My severance package was ultimately increased substantially. The lawyer got a set fee for the job, not a percentage. There was no lawsuit involved, just very nice writing by the lawyer. I was in awe of how neatly he got his message across without making any actual threats.
To play devil’s advocate, how does the OP’s friend know all this? I mean to be honest, this all sounds a bit Machiavellian and over the top. The company started trying to figure out a way to get rid of the OP’s friend over 2 YEARS ago and brought in a manager SPECIFICALLY to nit-pick her work so they could set her up to be fired right before she turns 55?
Is it more likely that for whatever reason she just didn’t mesh with the new boss in terms of personality or work style?
And it’s not like you automatically can’t collect unemployment if you quit or get fired. It’s also a misconception that the company pays unemployment benefits directly out of their own pocket. The company pays unemployment taxes as a percent of taxable wages of their employees. The state unemployment office then pays claims out of that money.
Is this a large company? Are they systematically laying off employees who are approaching 55 years of age? Why was the OPs friend singled out?
So now both the company and the attorney are conspiring against your friend?
She doesn’t have to “take the pension as a lump sum.” She can roll it over into an IRA and avoid the tax penalty. She needs to do that. She also, as mentioned, needs to go to work. Tell her to just keep reciting f*** 'em if they can’t take a joke as she leaves. I have personal experience with this being escorted out of the building stuff; she can also remind herself that the people watching her leave are going to have to come in on Monday and deal with the crap and she can sleep in.
I am a director of H/R and I can tell you there are a lot of misconceptions. I can tell you that right now I am in Illinois, so your state may vary. Especially California, which has the most friendly laws, towards the employee in the nation.
First of all, yes companies do fire people before paying out a pension, a bonus or incentive. It does happen. Companies generally don’t abuse policy but they certainly use it to their advantage.
The hard reality is your company doesn’t exist to give you or anyone a pension. It exists to make a profit for their stockholders. And being in H/R that often leaves me the bad guy. I have to fire people and have no say in the matter often, but that’s part of the job. I also get to offer people jobs and have them love me for it. It works both ways
First is it against the law to fire someone solely for the reason of not paying a pension? Answer is, it might be. Some states have enacted laws against this, and some have not. Some have court cases against it, some do not. This is why if you go this angle you have to get an attorney.
Is this age discrimination? Probably not. If this company is trying to avoid paying a pension, they are technically not discriminating against age, in theory they’d do the same thing if the person was 39 and trying to collect a pension. But age discrimination may be a true but unrelated factor.
An age discrimination suit would be a separate legal issue. But it may be valid. Honestly, people over 40 are discriminated against. It does happen.
As for a stellar record, records can be whitewashed. They also are very inaccurate. I go over reviews and some people have records that seem to indicate in 20 years of service they have never made an error. This is obviously not true. I make errors, everyone does. So a record is only a general indicator of success at a company.
If they are nit picking at to get her fired this is problematic. Why? Because there is nothing really illegal about it. People talk about “creating a hostile working environment.” A hostile working environment is not the same as a pleasant working environment. You can go home crying everyday because your job is so unpleasant and bad. But it doesn’t mean it’s a hostile working environment. A “hostile working environment” is a legally defined thing.
Think of it this way. Suppose I live a mile from my work and between my house and work is one stop sign. And for the last ten years, I run this stop sign. I never stop. The cop sees me every day for the last ten years and never stops me, gives me a warning or a ticket.
Then one day the chief of police says “We need to raise money. start ticketing people.” So the next day the cop, who has seen you run this stop sign, every day for the last ten years pulls you over and gives you a ticket." Is this legal? Yes it is. If you go to the judge and say, but I did it all the time, do you think he’ll care? No. Do you think, because the motivation behind it, is to raise revenue and not public safety or just to enforce a law, you’ll get off? No you won’t.
Same with a company. if you have been coming in late every day for the last ten years. One day out of the blue, they can suddenly start to enforce this. Write you up and fire you for it. And they’d be in the right.
In the end you’re still doing something you shouldn’t.
Don’t confuse what is LEGAL with what is FAIR.
Here’s an example. My company once dismissed someone because we were sure he was fiddling his time punches. Well he proved to us we were incorrect. But the GM said, “I don’t want him back anyway.” So he stayed dismissed. He sued us for wrongful dismissal. I told him it wasn’t true and he found a lawyer to take his case. Of course he lost. And wound up, paying his attorney and OUR court fees as well. And our lawyers aren’t cheap.
Why did he lose? Because legally “wrongful dismissal” does NOT mean wrong. It means a wrong reason that is LEGALLY PROTECTED. Since there is no law against dismissing someone because we suspected him of time fiddling his punches, we legally did nothing wrong. Even though in fact we WERE actually wrong.
This is why when you have questions like this you MUST seek legal advice. There are far too many variables to know. A good lawyer will take your case on a contingency basis. That means you should get a free initial consultation. After if the lawyer takes your case, he gets a percentage of your take.
I say this because as an H/R person, if I call our legal dept they know in less than five minutes if you have a case or not, and we’ll fix it. In 15 years at my present company we never lost a case in court, because if we’re wrong, we don’t go to court. When we go to court, we know we’ll win.
The bottom line is what is happening to your friend, does in fact happen in real life. Not always but it has happened. Court cases prove this. But remember don’t confuse what is LEGAL with what is fair.
What is happening to your friend, sounds very unfair, but is it illegal? That only a lawyer and judge can say?
Good luck
That you are just “doing your job” as the faceless instrument of your company’s policies makes it no less detestable.
If companies “don’t exist to give out a pension or bonus” then they shouldn’t imply that they give one out. It may technically not be fraud or otherwise illegal, bu it is clearly a misrepresentation of the arrangement between the employer and the employee.
Frankly I’m still surprised that people still have a mindset of working for some company for 30 years and then collecting a pension.
What a steaming load of horseshit. It’s like saying you don’t have a policy of discriminating against black people - just against potential sickle cell carriers.