- August 25, 2020
- Steve Heisler
- Podcast Episodes
About John Stolarz: John is the head partner at the Stolarz Law Firm. His practice specializes in representing employees for discrimination on the basis of age, sex, disability, or race and for wage theft by an employer. He’s been practicing since 1980 and represents employees in the state of Maryland and federal courts.
In this episode, Steve and John discuss:
1. How prevalent is age discrimination in the United States workforce today?
- It happens all the time. The problem is that employees don’t really know when it’s happening and when they do realize that that may have been the case, they have not taken any steps to protect themselves and that is a real problem. It is difficult to determine what the motivation of an employer is when they take any type of disciplinary action against the employee or start picking up their work or transferring their work to people who are younger. So it’s very prevalent and it’s very difficult to protect against themselves unless one knows what to look for.
2. What protections against age discrimination to older employees have in the workplace?
- The protection that they have is the two statutes of federal and state statutes. The federal law is The Age Discrimination and Employment Act and the Maryland law also has a statute in the state government article, generally. The laws and they’re both relatively saying, protect an older employee when he or she applies for a job and when they are not hired, and this is very difficult to prove, of course, but if there’s something during the course of the interview, perhaps that can lead the applicant for an employer for a job to kind of figure out that the employee is not going to be employed, because of their age, the protections are there for older employees.
3. At what age are you considered an older employee?
- Generally and under federal law, an employee over the age of 40 is an employee who feels that there is discrimination going on because of preference, for example, of younger employees. That entitles the employee to proceed with an action against the employer. On your Maryland law, there is no age limit under Maryland law, and all the workers, if there’s a preference for a younger worker, for example, or if the employee is not getting jobs, but a younger employee is getting those jobs, for example, it doesn’t matter what the age is.
4. In other states are there the same protections that Maryland gives to its older employees?
- Most of the states have their own rules which are similar to The Age Discrimination and Employment Act, but usually, in other states, there are no such protections. They are protected by federal law, assuming there are certain interesting commerce requirements are fulfilled, but those are usually not very hard to do.
5. Should a person who believes that they’ve been discriminated against because they’re a part of the aging population, or older than 40, make claims under both the federal law and their respective state law?
- Once the employer determines that there may be some sort of age discrimination going on. If the person is still employed, the first thing that person should do contact the HR department and make a legitimate complaint about that. If you start filing a lawsuit without taking the steps in the workplace that the employee has available to him, in case there’s discrimination, in court, you won’t fare so well. So the most important thing for an employee to do, if the employee feels that he’s there’s some sort of discrimination is to contact the Human Relations Department, in the company. Most importantly and many people don’t do their due diligence and look in their employee handbook and see what they should be doing if they feel there is discrimination and follow those rules that are in the handbook. That will protect the employee from retaliation because if the employee makes a complaint about age discrimination in the HR department whether they’re right or wrong, the employee is protected from any type of retaliation by the employer for making those complaints.
6. Are you saying that they could pursue a wrongful termination or retaliatory termination type case if they were actually fired because they reported it or complained about it?
- Let’s break it into two parts here. First is if the employee is still employed, and he feels that there’s age discrimination going on, or that the employer is starting to move towards replacing that employee and with somebody younger, the employee needs to make the complaint. If the employee doesn’t make a complaint, but then goes to the EEOC process and the employer will say, well, we would have taken the necessary steps to correct the problem. So that’s why it’s important to raise it in the workplace if they’re still employed there. So that employer cannot, later on, come in and say, Oh, we would have taken care of the problem if we were told something about it. I hear those types of complaints in age, race, sex discrimination all the time.
7. What is the best way to make a report to HR, by just talking to them or in writing?
- If an employee feels that there’s age discrimination going on, the first thing that employees should do is keep good notes. Keep good notes of what happened in the workplace, get what was said, who said what, and keep those details as they go along until they do have that feel enough to be able to approach the HR department.
8. So no matter what state they’re in, in order to make a federal claim that they’ve been the subject of age discrimination, they have 300 days from when the discrimination ended?
- If it’s a continuous type of action. It’s from when, from the date the last date, but that’s always a tricky question. What’s continuing action? Discrimination taking place is a tricky legal question. So the employee should always make the complaint as soon as possible and not wait.
9. So federally, there are 300 days, but the sooner you make the EEOC claim on the federal side, the better because you don’t want to get in a situation where you made the claim too late. And it’s barred by what’s called the statute of limitations?
- That’s correct.
10. If they want to make this state claim as well, they should check with their local civil rights commission or Human Relations Commission to see what the deadline is there. If they missed the state statute, if it’s under 300 days, they can still make the federal claim correct?
- That’s correct. He or she usually cross files with the state version of the EEOC and all around the country. But they’re protected when they file with the EEOC because then their protection falls under The Age Discrimination and Employment Act.
“By filing with the EEOC, whether the EEOC investigates. Whether they find anything or not, it doesn’t matter because there comes a point in time where you can get what’s called a right to sue letter from the EEOC, regardless of whether they found anything or not and at that point, you can file a lawsuit.” — John Stolarz
To find out more about the National Injured Senior Law Center or to set up a free consultation go to https://www.injuredseniorhotline.com/ or call 855-622-6530
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Show notes by Podcastologist: Kristen Braun
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