Last edited Thu Dec 12, 2013, 04:59 PM - Edit history (1)
And you should be prepared to do so to.
Now, remember under the Civil Rights Act of 1964, age dissemination is ILLEGAL. On the other hand, if you can NO longer do the work do to your age, that is legal grounds to dismiss you (or if your quit to deny you unemployment).
To get around this, the Civil Rights Act set up the Equal Employment Opportunity Commission (EEOC) and every state has its own EEOC (sometimes called Human Rights Commission). Under the Civil Rights Act, the Federal EEOC can empower any State EEOC to enforce not only State law on Discrimination but Federal Law. All states have empowered their EEOCs to do that.
Given how hard it is to prove any type of Discrimination, the Law set up a two step process. First, a Complainant (you and your co-worker) must file a Complaint with your State EEOC along with enough Evidence to show you have a Prima Facia (on its face) case of Age Discrimination. You do NOT need proof of Discrimination, just some evidence to show it MAY be occurring. Once you have a Prima Facia case it is up to the Employer to show they had other legal reasons for the acts they did.
Now, what is needed for a Prima Facia case? Something more then you feel you are being discriminated against, but not that much more. Examples of Good Evidence is seeing what others are doing and how they are being treated and writing it down. Writing down what you are being asked to do. If your employer give you anything as to how long they expect your to work, provide it to the EEOC. If you have to work more the 40 hours a week and not get paid for it, write it down (dates and times are important, the EEOC will have a hard time using a statement like "I work 60 hours a week", but can use, on Monday I worked from 8 am to 8 pm, on Tuesday 11 AM to 8PM, on Wednesday Noon to Midnight, On Thursday 8 am to 8 pm again, on Friday Midnight to 6 AM, on Saturday she was off, on Sunday noon to 6pm". That is 60 hours. She can said this has been her typical schedule for many months, but the EEOC want some hard data before they will accept "this has been going on for months". The more weeks the better, but after awhile you will see a pattern emerge and that is what the EEOC will want to see.
Another Aspect is what she is doing compared to younger co-workers. Is it the same? and if different how?
Now, what a lot of Employers do, is put different employees in different classes of employment. Thus when someone files with the EEOC and say X is doing the same job as I am, but less hours and less work, the Employer comes back and say X is doing a completely different jobs and thus you can NOT compare your job with X's job. At that point the EEOC has to have the evidence (hopefully given to them by you as you file the Complaint), that the job Classification may be different, but the actual work is the same.
You have to also keep those evaluations and talk to your co-workers about they jobs and their income. Employers often tell Employees it is forbidden for them to discuss pay or job duties, but you will NEVER see this in writing. The reason for not seeing it is writing it is illegal. Such a rule is considered an Anti-unionization rule and thus an unfair labor practice and thus illegal under Federal Law covering not only union workers but non-union workers, even if no effort is being made to unionized them.
Now, you also need to get with her to discuss this problem with her and to work together on this problem. You also need to get other co-workers involved. You need to ask co-workers to meet so they can discuss these problems. In that discussion bring out those evaluation sheets and the pay sheets and compare them. Tell your co-workers it is legal for them to talk about such things.
Now, employers will do all they can to prevent such talk while in their place of business. Thus you have to tell your co-workers that you would like them all to come and meet. Tell them they do NOT have to come, but you want to talk about how management is treating their employees. Tell them you believe age dissemination is occurring and want to discuss it, even with co workers in their 20s and 30s.
In the days before everyone started to drive to work (And that is only in the 1950s) people would walk to work. While walking they would talk and decide to meet in bars (prior to the 1930s, Social hall, Churches and other community social halls and meeting places. Thus most efforts to form a union started out in bars, Social Organizations, Beneficial groups and Churches For these are places people would go to in the same Community and given people had to live close enough to work to walk to work, co-workers all tended to go to the same bars, social organizations and Churches (or if they did go to different ones, the number of such places was quite limited). This permitted co-workers to meet quite often after work and discuss work. When unions were finally formed in the 1930s, the Unions built Union Halls for such meetings, thus Protestants did not have to go to a Catholic Church to discuss union matter (or vica versa), and Social Organizations no longer had to open they "Secret" meeting place for the union meeting (or people who supported prohibition go to bars). The 1950s was the height of unionization in the US, various reasons have been given for the decline in unionization since the 1950s, but that people had adopted a Car center life style that permitted them to move to the suburbs is rarely given as a reason, but it destroyed the ability for employees of one employer to get together after work to talk shop.
And lets me make it clear, you need to talk shop. I do not know your total situations, but while an union would help you in this situation, it is way to early to think about forming one. You need at least 75% support for a union before you even think about forming one (Once you start the actual unionization effort, management will hire experts to prevent the unionization effort and thus you will see massive fall off from the 75% support level during the period up to the unionization vote. Ideally 90% with none of that 90% signing do to pressure from their co-workers (i.e. they want it for themselves). In a unionization push, Management will have the employees attend all types of Anti-unionization meetings with all types of data, all done on company time. The Union will NOT be able to counter this for the Union will NOT be permitted to talk to the Employees while they are working and management will do its best to make sure the employees are kept apart as much as possible. One threat Employers like to make is that if the business unionized, they will close the business. Walmart is noted for this, and in fact has done it in Quebec when its stores decided to join a union. It is NOT an idle threat, and employees often take that threat as a threat to their job and vote NO to a union on that grounds alone.
While, it is way to early to talk about unionization, that does NOT mean you can not meet after work. I would discourage meeting doing work, even doing lunch, for management will listen in. But a quick comment as you pass each other, or during lunch or as you walk to and from your car may be enough to get them to join in a meeting. Do not expect 100% turn out, a lot of people will say yes, and then NOT show up, but you have to plan for 100% just in case they do.
Now remember the purpose of the meeting is to discuss work. Discuss it, including your complaints about management. See what management is asking of the other employees. Write it down (you do NOT have to name names, but if they agree you can use they name use it).
One using names: If you see X and you compare yourself to X, then they is no reason NOT to use X's name in your paperwork to the EEOC. On the other hand if X tells you something, then do NOT use X's name unless it is expressly demanded, unless X told you you can use X's name. You have to protect your co-workers, that is one of the duty of being a co-worker (and the key to unionization if you go that route). No protection of your co-worker, you will not get their co-operation. You need their co-operation.
Now, once you have data, then file an Age Discrimination claim against your employer, for then you have enough data to force them to state why the additional work was placed on you and that such a request for you to do extra work was reasonable.
Now, I noted that your 62 year old co worker was on "Salary". Salary is only for management or other professional employees. Who can be put on Salary is consistently litigated, but rarely by union personal (the Union generally agrees who is exempt and if they is a dispute a grievance if filed and resolved by the Labor Relations Board. This most of the cases involved non-union employees.
Here is a Labor Relations "Fact Sheet" on Salary. Notice if someone is earning less the $455 per WEEK, they can NOT be put on Salary: $455 per week times 4.1 weeks in a month comes to $1855 per month, or $23660 per year ($455 times 52 weeks in a year). This comes to $11.77 per hour if we assume a 40 hour work week
http://www.dol.gov/whd/regs/compliance/fairpay/fs17g_salary.htm
Please note there are other requirements to be on "Salary" For example a "Professional" is exempt ONLY of the following apply:
Learned Professional Exemption
To qualify for the learned professional employee exemption, all of the following tests must be met:
• The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not
less than $455 per week;
• The employee’s primary duty must be the performance of work requiring advanced knowledge, defined
as work which is predominantly intellectual in character and which includes work requiring the
consistent exercise of discretion and judgment;
• The advanced knowledge must be in a field of science or learning; and
• The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual
instruction.
Primary Duty
“Primary duty” means the principal, main, major or most important duty that the employee performs.
Determination of an employee’s primary duty must be based on all the facts in a particular case, with the major
emphasis on the character of the employee’s job as a whole.
http://www.dol.gov/whd/regs/compliance/fairpay/fs17d_professional.pdf
If she can show that she is NOT an exempt employee, she should file with her State Wage and Hour section of her State Department of Labor.
Let me add one more legal fact, The Statute of Limitation in Discrimination cases is only six months. You have six months from the date of the act of discrimination to file a discrimination lawsuit. If you file it late, your case will be dismissed.
Now, filing with your state EEOC stays the statute of limitation, what I mean by that once you filed, it can take years for the EEOC to make a finding, but that is NOT added to the six month period. i.e if you filed within the six month period, but the case is not heard for two years, you are still good. The Time period after filing is not added to the time period before filing. Remember you can also file BEFORE you have any evidence, thus file as you gather evidence if you are close to the six months rule.
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with the avalanche of $$$ from the billionaires.
