Terminated due to age?

[jeniferawalter]

What is the name of your state (only U.S. law)? North Carolina

My mother lives in a very small rural town. She has been employeed by a local doctor for almost 3 years. Last week he gave her her paycheck, then told her that it was her last day. He gave her no reason why. Here is some additional information around this situation: She is 63. He made a comment to her (and a witness) that he can get a tax credit for everyone he hires this year. He also made comments such as "do you know how much more I have to pay for your insurance over all the other employees" (he pays half of her insurance costs). She has had 1 review, which occured over a year ago. She has never had any disciplinary issues. She is hourly, but only gets paid for 40 hours nothing more, but less if she works less than 40 (she has copies of her timecards that show her working more than 40 hours). What should she do?

 

[Beth3]

First, your mother should contact her State's Department of Labor and file a claim for her unpaid overtime. The doctor can't have it both ways - consider her "salaried" when she works more than 40 hours but dock her pay when she works under 40. Plus, I expect your mom was a non-exempt employee which means she MUST be paid overtime.

As to whether your mother was fired because of her age, who can say? We don't know what was going on in the doctor's mind. She can also file a complaint of age discrimination with the EEOC (although that requires that the employer have 15 or more employees) or her State's equal rights division if their threshold is less.

Your mom should file for unemployment benefits right away and also start looking for a new job.

 

[las365]

She should talk to an attorney that handles Fair Labor Standards Act (FLSA) cases regarding pursuing her unpaid overtime, and she should hurry, as under some circumstances she can collect for the past three years instead of only two, and the dates for which she can get compensated are calculated backward from the time she files suit; and

She should talk to an attorney who handles employment discrimination cases (she can probably find one i the nearest large town by using the internet and her local Lawyer Referral Service) about a potential age discrimination claim. She should file an EEOC complaint, but I recommend that she speak to an attorney first to get information. There is also a deadline to file a complaint with the EEOC, and witnesses forget things and move away, so she should go ahead and get information and make a decision whether to pursue that fairly quickly.

 

[las365]

Beth and I have essentially the same advice with her suggesting the public agency option and me suggesting additional private assistance from a lawyer. We are both correct, in my opinion!

 

[Beth3]

las365 - of course the poster's mother can speak with an attorney but that costs money which she may not have. Filing a complaint for her unpaid OT with the DOL is free - and what they're there for.

Please also notice that the poster said her mother works for a doctor in a small rural town. Chances are they are not subject to federal discrimination laws as the doctor doesn't have enough employees.

 

[las365]

In FLSA cases, the attorney fees and case expenses are paid by the settling/losing Defendant (the employer) on top of compensation to the claimant of 100% of the owed but unpaid wages and liquidated damages of an equal amount. The attorney fees and expenses don't cost the client a penny of the amount he or she is owed by the employer.

A local attorney who practices employment law can explain the federal and state laws that apply, what her options are, and evaluate the potential value of her case. Some employment attorneys offer free consultaitons, some don't. If she has a viable case, odds are that she will get a much better settlement if she is represented by an attorney than she will if she goes through a government agency alone (even after paying attorney fees and expenses).

 

[ecmst12]

But if the company does not have enough employees, then there is no case.

 

[las365]

Right, I said an attorney can explain the laws and said "if" she has a viable case.

Some people recommend relying on bureaucrats, other recommend the advice of counsel. Both recommendations can be valid. I simply think that people benefit more from at least consulting an attorney.

 

[cbg]

If I may play devil's advocate for a moment, let me point out that if she has been with the doctor for 3 years, then she was 60 when she was hired. That works strongly AGAINST an age discrimination claim.

 

[ecmst12]

If he fired her so that he could hire someone else and supposedly get a tax credit for it (I tend to think he's misunderstanding the credit, but that's not really relevent to any possible discrimination issues), that is legal. Same if he fired her so he could hire someone else and pay them less.

 

[commentator]

While she is doing all this other stuff, filing with Wage commission for back overtime hours, which she can do herself, and also EEOC, which last time I checked, also costs nothing to file and can be done without an attorney, (though I am of the opinion that she doesn't have a very strong case she needs to file anyway) she definitely needs to file for her unemployment the first full week she does not work. Not the week after she gets a last paycheck or after she has looked and cannot find another job, but IMMEDIATELY.

Filing for unemployment will have nothing to do with, and will not interconnect with filing for back wages from wage and hour or for filing an EEOC complaint, but it will determine if the employer is paying his unemployment taxes, get your mother some income coming in immediately while she looks for another job. Even if she is receiving Social Security retirement or plans to sign up for it, she can draw unemployment at the same time as long as she does not remove herself from the labor force ('I can't take another job, I'm retired!') As long as she is able, available and actively seeking other work, they do not care about her income from SS retirement. Incidentally, this is NOT a pension for unemployment purposes, so when the question about pension comes up, she is NOT receving a pension even if she is getting SS retirement.

It is not the decision of the employer, and it is not on his say so that she will receive unemployment benefits. If she was terminated through no fault of her own, and not given any misconduct reason for her termination, no awareness of anything she did wrong, she stands pretty likely to receive those benefits.

Doctors offices are notorious for poor HR management. They are "personality driven" and the driver tends to have a god-like mentality that they should not have to pay taxes or benefits to their "underlings", and that they can manipulate the wage system to their benefit. She should strike out immediately to get back wages paid, also. EEOC isn't quite as strong a case situation, though the crack about how much her insurance was costing was pretty damning, but she should not let her hesitation to consult a lawyer or anything else stop her from filing for unemployment and calling about the wages and overtime pay right away.

 

[jeniferawalter]

Thanks for the advice

Thank you for the valuable information.
My mother did file for unemployement last week. She did call the EEOC, but since the office has less than 15 employees she can't file a claim. They did give her a number to call (which she will do Monday) to file a complaint about the over-time. BTW...she is not collecting any retirement or pension. Again, thanks for the advice!!!