Collecting SS Benefits - Can Employer Cut My Pay?

[OnwardUpward]

Given that I have in the past had employees who became eligible for SS benefits ASK for a paycut so as to lower any offset and also to reduce their taxable income, I don't think we can conclusively assume that the employer is exercising age discrimination. He may mistakenly believe that he is doing the OP a favor.

I can't say conclusively that it's age discrimination, although I'm the oldest employee. My employer just brought a new hire on board that they can't afford, so my guess is they're looking to rob Peter to pay Paul. A co-worker told me he had his pay cut 5 years ago when they hired a new employee - again, a hire they couldn't afford. This may be more of a pattern than outright age discrimination.

 

[justalayman]

You're correct - I became eligible for Social Security 3 months ago and immediately applied for benefits. My guess is that the SSA contacted my employer despite their assurance that they wouldn't.

But the fact remains your pay wasn’t cut when you were 1 year younger, or 2 years younger.


It was premised on the event of you having a second income. Regardless what the others say, that is not age discrimination.


Feel free to file a claim with the eeoc.

 

[justalayman]

(In reference to the post about the new employee)

Now that set of facts might support an age discrimination issue. It’s still not a slam dunk but it is a very different set of facts than what you presented first.

But if your pay wasn’t cut the last time, it tends to defeat an age discrimination claim. There is justification each time so you have to show a pattern that supports the justification is simply a ruse to hide discrimination.

 

[cbg]

I very much doubt that the SSA contacted your employer. You can guess it all you like, but really, why would they? What reason would they have to do so?

 

[PayrollHRGuy]

I very much doubt that the SSA contacted your employer. You can guess it all you like, but really, why would they? What reason would they have to do so?

Requesting a verification of earnings is my guess.

 

[PayrollHRGuy]

But the fact remains your pay wasn’t cut when you were 1 year younger, or 2 years younger.



Feel free to file a claim with the eeoc.

So if a female starts getting hit on by their male employer the day they are hired and it becomes known that they are a female then it isn't sex-based discrimination?

 

[Taxing Matters]

Disparate impact is age discrimination.

You assume a lot in reaching that conclusion. Certainly it is possible that age discrimination is at work here, but we don't have enough information to know that to be the case. If the only outside income that the employer reduces pay for is Social Security old age benefits then I agree that an age discrimination case could be made. But if the employer reduces pay for any other outside income regardless of source and regardless of the age of the employee, then the age discrimination case falls apart. All the details of what is going on matter, and we don't have those here. However, I agree that the OP might at least want to consult an attorney who litigates illegal employment discrimination claims to see if there might be something to pursue.

 

[xylene]

But if the employer reduces pay for any other outside income regardless of source and regardless of the age of the employee, then the age discrimination case falls apart.

Negating a benefit of being old is still discrimination by age. It would be the same if the benefit was for another protected class. Could an employer reduce the wage of an employee receiving a tribal benefit? When reparations happen, will employers be allowed to offset the wages of African Americans?

If an employer has a blanket policy of offsetting income, it would still be discrimination to apply such a policy to age pensions or other benefits tied to a protected class.

 

[Taxing Matters]

If an employer has a blanket policy of offsetting income, it would still be discrimination to apply such a policy to age pensions or other benefits tied to a protected class.

It would be discrimination but not illegal discrimination because the discrimination is not due to age. The fact that the particular income the OP has — SSA old age benefits — is only paid out to persons over retirement age (and thus over age 40) doesn't automatically mean that reducing pay because the employee is receiving that benefit is illegal discrimination. It can be good enough to make out a prima facie case for illegal discrimination — i.e. for the employee to get his/her foot in the door, but the employer can rebut that implication with other evidence to show that it is not illegal discrimination. If the policy is to reduce pay for anyone that has outside income and the employer can show it has consistently applied that policy to every employee regardless of age or what kind of income, that may well pass muster because it is not treating old people with outside income differently than a younger person with outside income. All the details of it really do matter.

 

[Taxing Matters]

When reparations happen, will employers be allowed to offset the wages of African Americans?

If reparations are paid directly to African Americans (and it is far from clear what form reparations would take, if they are ever done at all) it would be illegal discrimination to reduce pay specifically because of those benefits and not any other. But again, if there is a policy to reduce pay for all outside income regardless of source, and particularly if that policy were in place well before reparations were enacted, it may well be legal to apply that policy to the employee receiving reparations. Again, all the details really do matter.

 

[justalayman]

So if a female starts getting hit on by their male employer the day they are hired and it becomes known that they are a female then it isn't sex-based discrimination?

Not even close to a comparable situation.

 

[justalayman]

Negating a benefit of being old is still discrimination by age. It would be the same if the benefit was for another protected class. Could an employer reduce the wage of an employee receiving a tribal benefit? When reparations happen, will employers be allowed to offset the wages of African Americans?

If an employer has a blanket policy of offsetting income, it would still be discrimination to apply such a policy to age pensions or other benefits tied to a protected class.

You are taking an action that is applied for a legal reason and claiming it’s bexuaee of illegally based discrimination simply because the op happened to be old. If doesn’t work that way.

I’ll give you an example;

A black man works in a predominately white workforce. Black guy is told because he does side work they have to let him go.

Using your argument the black guy has a basis for a claim for illegal discrimination because he is black and the action affected only black people.

Obviously you would be wrong, or at least it can’t be determined if it was illegal based on only the facts at hand. That’s where we are here. We don’t know if there is any proof supporting an age discrimination claim and the actions posted here do not support such a claim by themselves . There may be a lot more that support one or there could be more that refute such a claim.

The fact is we do not have enough info to say there is illegal discrimination but we do have enough to say that there is not enough revealed here to support such a claim by itself. You have taken one action, that happens to be available to only older folks and twisted the reaction by the employer such that it must be because of the guys age. At this point, age is coincidental as there is nothing to show the action was due to his age.

For all we know the guy that won the lottery had his pay cut because the boss didn’t think the guy needed as much pay. I suppose you’ll find some discrimination in that as well.

 

[xylene]

A black man works in a predominately white workforce. Black guy is told because he does side work they have to let him go.
...
Using your argument the black guy has a basis for a claim for illegal discrimination because he is black and the action affected only black people.
...

For all we know the guy that won the lottery had his pay cut because the boss didn’t think the guy needed as much pay. I suppose you’ll find some discrimination in that as well.

If the 'black guy' was fired when his side job was braiding African hair... AND he was the only one fired... that would be unlawful discrimination. That's what we are really talking about.

Honestly, if something is a policy crafted so it only has discriminatory intent, or outcome, that is illegal discrimination. That's disparate impact. The EEOC agrees, rightly.

Ummm... lottery winners aren't a protected class, they are not even a wobbler class... so maybe you are talking out your butt and should confine your hypothetical examples to actually legally protected classes .

 

[Taxing Matters]

If the 'black guy' was fired when his side job was braiding African hair... AND he was the only one fired... that would be unlawful discrimination. That's what we are really talking about.

Honestly, if something is a policy crafted so it only has discriminatory intent, or outcome, that is illegal discrimination. That's disparate impact. The EEOC agrees, rightly.

If the intent is not discriminatory but the impact falls more more by one protected class than another (the disparate impact cases) then it might be illegal discrimination. It is not automatic that there is illegal discrimination. The Supreme Court just as recently as 2015 stated:

In contrast to a disparate-treatment case, where a “plaintiff must establish that the defendant had a discriminatory intent or motive,” a plaintiff bringing a disparate-impact claim challenges practices that have a “disproportionately adverse effect on minorities” and are otherwise unjustified by a legitimate rationale.​

​

Texas Dep't of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2513, 192 L. Ed. 2d 514 (2015)(bolding added).

Note in particular that last clause that I bolded, "and otherwise unjustified by a legitimate rationale." That is why I say all the facts matter. Just because the policy or practice may have a greater impact on one class than another does not automatically make it illegal. It does set up the prima facie case for the plaintiff — gets him/her in the courtroom door — but leaves open the possibility for the defendant to prove the policy is justified and thus not illegal discrimination.

And further, in 2005 when the Supreme Court held that disparate impact analysis applies in cases under the Age Discrimination in Employment Act (ADEA), which is the law that makes it illegal for employers to discriminate against employees based on age, it said this:

As we held in Wards Cove, it is not enough to simply allege that there is a disparate impact on workers, or point to a generalized policy that leads to such an impact. Rather, the employee is “ ‘responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.’ ” 490 U.S., at 656, 109 S.Ct. 2115 (quoting Watson, 487 U.S., at 994, 108 S.Ct. 2777; emphasis added). Petitioners have failed to do so. Their failure to identify the specific practice being challenged is the sort of omission that could “result in employers being potentially liable for ‘the myriad of innocent causes that may lead to statistical imbalances ....’ ” 490 U.S., at 657, 109 S.Ct. 2115. In this case not only did petitioners thus err by failing to identify the relevant practice, but it is also clear from the record that the City's plan was based on reasonable factors other than age.​

​

Smith v. City of Jackson, Miss., 544 U.S. 228, 241, 125 S. Ct. 1536, 1545, 161 L. Ed. 2d 410 (2005).

Again, the court is highlighting that simply showing a statistically greater impact of a policy or practice against older employees is not enough to win an ADEA claim. Note the final clause there, too, the city was able to show its plan was based on reasonable factors other than age. So while there was a greater impact statistically on older employees, that alone did not win the day. All the details matter.

 

[justalayman]

If the 'black guy' was fired when his side job was braiding African hair... AND he was the only one fired... that would be unlawful discrimination. That's what we are really talking about.

Honestly, if something is a policy crafted so it only has discriminatory intent, or outcome, that is illegal discrimination. That's disparate impact. The EEOC agrees, rightly.

Ummm... lottery winners aren't a protected class, they are not even a wobbler class... so maybe you are talking out your butt and should confine your hypothetical examples to actually legally protected classes .

No it would not. The basis for the firing was he did side work. It doesn’t matter what he does. In your attempt to correct me, you simply said he braids African hair. So what? If he was fired BECAUSE he braids black hair, that would be illegal discrimination. You keep confusing coincidental issues with the issue for the termination. Just because an aspect that can be a basis for illegal discrimination is present doesn’t mean the action in question was illegal. It has to be because of the protected aspect, not merely that it is present.


As well, your statement that if he was the only one fired that too would support a claim of illegal discrimination. As stated, you would be wrong. If he was the only person fired with the claim it was because he held a second job while other non black folks with second jobs were not fired, that supports a claim of illegal discrimination. As you wrote it, it was simply because he was black and he was fired and that makes it illegal. That would be wrong

You have to show he was treated differently because he was black to support a claim of illegal discrimination. If he is the only person that held a second job that the employer was aware of, that does nothing to support illegal discrimination. That is where historical actions come into play. If the employer had fired non black employees for the same thing, that shows the current action is likely to not be based on illegal discrimination.