It’s “Your Money or Your Life” for Senior Workers

Sacramento, CA A nationwide flood of Covid-19-driven age discrimination lawsuits suggests that similar surge in California labor lawsuits is imminent. A New York case may be a harbinger of things to come. In Kanyuk v. Shearman & Sterling, LLP, a 62-year-old employee was the first to be fired in a wave of Covid-19-related layoffs. The employer claimed that the layoff was necessary for economic reasons. The worker cried age discrimination.

Age discrimination was seen as rampant even before Covid-19 struck. Now, as the pandemic wears on, the economic recovery stalls, and furloughs turn into permanent layoffs, older employees need to know about how they are protected.

The senior worker’s dilemma

There are more than 10 million Americans 65 and older are still in the workforce, and they are justifiably worried about both risks to their health and the risk of losing their jobs. Covid-19 is especially deadly for adults over the age of 65. Seniors are concerned about an employer’s ability to provide a safe workplace, especially if they work in public situations. Those who have been working remotely may be reluctant to return to an office for the same reason.

At the same time, however, they fear being laid off. Contrary to public perception, not all older employees have a nest egg stashed away; it could be disastrous for many if their employers were to use the economic downturn to push out them out.

Not surprisingly, employment lawyers report a flood of Covid-19-related inquiries about layoffs, firings and recalls to the workplace that may involve discrimination against older employees. Many cases also involve disability bias claims.

Federal and California employment labor law protections

Older workers are protected under a collection of federal and state statutes. Each law has its own focus and limits however. Because disputes often arise from complicated sets of facts, a California labor lawsuit often includes counts under several statutes.

In California, as throughout the country, the rights of older workers are principally protected by the Age Discrimination in Employment Act (ADEA). California employees may also have additional protections under the California Fair Employment and Housing Act (FEHA) .

The Age Discrimination in Employment Act

In general, the ADEA prohibits age discrimination against people who are age 40 or older. The law covers employers of 20 or more individuals and aspects of employment that include hiring, firing, pay, job assignments, promotions, layoff, training and benefits. It prohibits employers from excluding individuals from the workplace within that age group, even if the employer’s motive was a benevolent wish to protect employees at higher risk of severe illness.

However, unlike the Americans with Disabilities Act , the ADEA does not include a right to reasonable accommodation due to age. An employee, who is unwilling to return to the workplace because he or she is at greater risk of contracting the virus because of age, may not have the right to ask to work from home.

The law also does not protect job applicants. Consider the situation of an older employee who, in order to be eligible for state unemployment benefits, voluntarily resigns from a job rather than taking an unpaid furlough. When things improve and she reapplies for her old job back, the ADEA protections that may once have applied are now gone.

Finally, consider Mark Kanyuk’s problem. His employer said that laying him off was a completely legal economic decision. Kanyuk claimed that it was age bias and that cost was just a pretext. Proving that an employer’s given reason is only a pretext can be a complicated issue at trial.

Telltale signs of age discrimination

A layoff may be age discrimination if:

• the company made layoffs that disproportionately affected workers over 40;
• internal communications indicate that the decision may have been based on age;
• statistical evidence supports a pattern of hiring younger workers to replace older workers;
• there are indications that an employer tried to falsify a record to support its version of events, as by adding notes after the fact to an employment record or complaining about performance suddenly after a long history of successful evaluations.

Senior workers should know, however, that proving age discrimination is very evidence-specific. They should begin to assemble evidence and keep it at home, as soon they begin to suspect that something foul is afoot.

California’s Fair Employment and Housing Act 

FEHA protects California workers aged 40 or older from discrimination in the workplace or in hiring practices. While the law is similar to the ADEA, there are some significant differences. FEHA applies any employer with at least five employees. The category of protected workers is also larger than under federal law, which affects how the law interacts with laws protecting workers from disability discrimination. FEHA also appears to apply to the application process. The deadlines for filing a lawsuit are longer and, unlike the ADEA, FEHA allows for unlimited compensatory and punitive damages.

A successful lawsuit that alleges Covid-19-based age discrimination will likely rely on a variety of federal and California labor laws, as well as careful and extensively collected evidence.