How Would This Work?

[graceous]

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

Hello, I have been employed at a small business for almost two years. I was informed yesterday that because I am old and stressed, like the consultant who talked with me identified herself as, there are plans for s younger person to take over my job in about six months, around the time I turn 65. There were vague comments about how a younger person should get a chance and bring "more energy" to the job. Consultant suggested I could become a consultant for the company (earnings less than half my current salary as independent contractor) and should get another job. Yesterday I just went along with what she said to see where it was going, but today I let her know I had no intention of "retiring" until I am age 66 in 18 months so please find work for me here if my position changes. Lack of energy is not my personal issue, I am actually very healthy.

One question is this: Suppose I lost my position and I turned down an independent contractor job that would pay less than half my current wages. Would EDD consider me eligible for benefits? I read info on a partial claim, but it did not seem to fit my scenario. Would I be able to file a partial claim?

Sadly, this Independent contractor stuff is like shooting ones self in the foot, but it is the way this industry classifies workers across the board incorrectly as IC's. . It is not appropriate for someone who has to go work at a company site one or two days each week at certain hours. It does take the company off the hook, though, of paying for things that I will have to pay more for (i.e. working in a medical environment with not Workers Comp benefits) and exempts me from future EDD benefits.

And, what about this consultant's comments about my age and how I should retire so younger blood can have a chance? Is this EEOC material?

All I want to do is work full time until age 66, 18 months from now, and then move into consultant work, but these next 18 months are crucial for earning wages and cleaning up loose ends to make retirement or semi-reiitrement work for me and I will continue to push for them to create another f/t job if I get bumped. But, there may be other scenarios.

 

[cbg]

There is a poster here, commentator, who is much more qualified than I to address the unemployment portion of your questions, so I will leave that to her.

As for the age-related question, damn straight that's EEOC material. That is pretty much classic age discrimination. She was really stupid enough to say that to you? How many zeros does she want to write on the check, anyway?

 

[adjusterjack]

Sadly, this Independent contractor stuff is like shooting ones self in the foot, but it is the way this industry classifies workers across the board incorrectly as IC's. . It is not appropriate for someone who has to go work at a company site one or two days each week at certain hours. It does take the company off the hook, though, of paying for things that I will have to pay more for (i.e. working in a medical environment with not Workers Comp benefits) and exempts me from future EDD benefits.

Which is exactly why companies illegally misclassify employees as independent contractors. It saves them a ton of money and, in many cases, the employees accept it because they are afraid to be without the income.

And, what about this consultant's comments about my age and how I should retire so younger blood can have a chance? Is this EEOC material?

Yes, it is. And the sooner you file your complaint and get the investigation started the sooner you will have protection against retaliation.

Understand that you are already being set up for a screwing and it's a matter of when, not if, it happens.

I suggest you make the pre-emptive strike with an official EEOC complaint right now. Once the EEOC starts breathing down your bosses' necks they might back off on their intentions and allow you to stay until your planned retirement date without any more screwing around.

Otherwise, your days are numbered.

 

[commentator]

Check posting history here. It's quite extensive. Graceous, there is no way we can shoot this far into the land of Perhaps. Perhaps they will terminate you. If they are stupid enough to terminate you by eliminating your current job (by the way, write down everything you recall having been said by your supervisor in this "talk" she had with you today so you will be able to recall it fully later) you will very likely qualify for unemployment benefits. You of course DO NOT QUIT your job, even if they tell you they are doing away with it and are going to offer you blah blah blah. Make it plain to them, and keep records of the times and dates you do this and what you say, that you DO NOT wish to retire, that you DO NOT want to cut down your hours, that you do not find your job too stressful, and that you plan to continue working until YOU feel ready to retire. Which of course when that might be is not something you are going to share with them.

If they try to get rid of you by eliminating your job, not for cause, but for "lack of work" or "position eliminated" or "downsizing" in other words something NOT your idea or your fault and you find yourself out of work through no fault of your own, and then begin drawing unemployment, they can call you back as a regular employee, at the same job and at the same salary, and if you turned it down it would probably affect your benefits. We can only theorize at this point, of course, because we don't have a clue how this will or will not go down. If they fire you for any reason, and you apply for and are approved for your benefits, and THEN the company tries to get you back by offering you your old job back or another job with them, you will NOT have been considered to have refused suitable work. When they fire you, they're saying they consider you an employee worthy of termination, and are severing the job relationship with you. Trying to give you the old job back when you've been fired and then been approved for unemployment won't work for them unless you're stupid enough to take it and let them fire you for something else later.

If they offer you "consulting work" half time and at a lower salary, of course that is not likely to be considered an equivalent job. If you refuse it, it will be rather unlikely that your benefits would be cut off. But of course this is far too hypothetical for us to say, "Oh, no, of course not." We just can't tell.

As to the "would this be grounds for an EEOC complaint" the answer is as said above, "Oh hell yeah." And you will, of course, run don't walk to an employment attorney as quickly as they make this one official and I suspect they'll be willing to take your case on contingency. I can't imagine the size of the company you work with, cannot imagine that they'd be free to make this sort of statement or offer or declaration to you if they have any kind of an HR at all, but if they do, they are walking out on a very narrow limb. Yes, they can get rid of you. Will it cost them? Probably if they pursue this type of behavior to do it. Will they? We can't say.

In the meantime, be very careful they don't find some other reason to get rid of you soon since it sounds like they have getting rid of you in mind.

 

[graceous]

Thanks! This all helps with perspective, and I am going to spend some time tonight writing down just what that conversation was with that consultant yesterday and document, document, document.

 

[graceous]

So, it has been about three months since I have been here. Today I was terminated. This came totally out of the blue. My immediate supervisor had no complaints, I had just organized a potluck for my employees and gave them all little gifts. It was an ordinary day and then I received a Text Message at 4:00 stating I was terminated. No reason, and no final paycheck or vacation paycheck. That, after two years of employment.

I am supposed to meet with Consultant tomorrow after 3 PM to pick up my stuff and hand in keys and finish filling out time sheet. Beyond being in a state of shock and upset, the folks I supervise are in a state of shock as well and will have some words with associate tomorrow.

I have already filed for EDD benefits and I have already told associate that I am not going to meet tomorrow unless there are paychecks. As far as I am concerned I should also be paid for tomorrow, Friday, because I was not given my final pay upon termination. I am so emotionally raw I do not even want to meet with this associate but I guess I have to meet, if only to hear what she has to say.

I am seriously thinking of seeing a lawyer and filing EEOC complaint because I suspect the reason is that the favored younger relative in replacing me because I am too old. I guess I should go and see what she has to say.

 

[commentator]

Glad you have finally decided after all this time, that there was something going on and have decided to run this past a labor attorney. Hopefully you will be filing an EEOC complaint.

Unless they bring it up, absolutely do not even mention having been offered a chance to work as a contractor. That was never a viable or respectable option, and shouldn't have any effect upon your eligibility to received unemployment benefits for a brief period, which is what unemployment benefits are. Make work searches diligently during them, no matter what the status of any and all EEOC complaints, lawsuits, cases, etc.

The handwriting was on the wall as far as your want and the company's want being pretty far separated for some time now. But unemployment benefits should help. Do not discuss too much, do not give them too much information in the filing of this claim. Simply state that you were informed your services were no longer needed, and that you had always done your job to the best of your abilities. DO NOT bring in this business about refusing to meet with them if they do not give you your last paycheck, etc.. But if you meet with their consultant, don't sign anything you do not want to sign. Do not volunteer or sign that you're resigning or any such nonsense.
At the same time, be polite and professional. That will be much more interesting and will give them more to worry about than any kind of anger or indignation.

 

[graceous]

Thank you, Commentator. What really stood out is be polite and professional. Very important for me, my future, and also because the owner is always looking to start a fight.

I said nothing in filing my claim except that I received a text stating I was terminated and no reason was given.

 

[Chyvan]

no final paycheck

CA requires that an employer hand you your paycheck at the time of firing. Failure to do so means that for up to 30 days you are considered on the payroll until that pay check is made available to you.

You can read all about it here, and file a claim if you think they're taking too long. http://www.dir.ca.gov/dlse/FAQ_Paydays.htm

"An employee who is discharged must be paid all of his or her wages, including accrued vacation, immediately at the time of termination."

 

[Zigner]

How do we know this guy wasn't properly classified as an IC? (Did I miss it?)

 

[eerelations]

OP really really REALLY should have filed an EEOC claim back in early October when she was first advised to do so. Her situation today might be completely different had she done that.

 

[Chyvan]

How do we know this guy wasn't properly classified as an IC? (Did I miss it?)

He was never an IC. It was hinted that he could become an IC as they transitioned him out the door.

 

[fishytom]

Wow, I can't believe an employer would actually say "I'm going to hire someone younger for your job". This is age discrimination at it's finest. The ADEA would apply to businesses with over 20 employees, but in California, state law (Fair Employment and Housing Act) lowers this to 5. This could be a good case.

 

[Shadowbunny]

Wow, I can't believe an employer would actually say "I'm going to hire someone younger for your job". This is age discrimination at it's finest. The ADEA would apply to businesses with over 20 employees, but in California, state law (Fair Employment and Housing Act) lowers this to 5. This could be a good case.

fishytom, please stop reviving old threads.

 

[eerelations]

fishytom, please stop reviving old threads.

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