The Age Discrimination in Employment Act

The Age Discrimination in Employment Act of 1967 (“ADEA”) prohibits discrimination by employers, employment agencies, and labor organizations against any person “because of such individual’s age” in the terms, conditions, or privileges of employment. The ADEA applies to all employees age 40 or over, with no maximum age limitation. Notably, the ADEA specifically prohibits discrimination between employees within the protected age group as long as the disfavored employee is “significantly” or “substantially” older than the favored worker.

This chapter from Employee Rights Litigation: Pleading and Practice (Matthew Bender) provides a comprehensive overview of the ADEA. The discussion initially addresses administrative procedures that serve as prerequisites to civil actions, as well as filing complaints with the Equal Employment Opportunity Commission (“EEOC”) and comparable state agencies. Next, the chapter turns to basic legal theories relating to age discrimination, including disparate treatment and disparate impact. The discussion continues with coverage of statutory defenses and exclusions; bona fide occupational qualifications (“BFOQ”); and the good faith defense set forth at Section 7(e) of the ADEA. In addition, the discussion covers pre-trial motions; motions in limine; expert testimony; class actions; remedies; and recovery of attorneys’ fees. The chapter concludes by providing a comprehensive library of sample forms.

Employee Rights Litigation: Pleading and Practice (Matthew Bender) provides complete coverage of the basic legal standards governing the statutory and common law claims that can be raised on behalf of employees for discriminatory treatment or wrongful discharge. It contains analysis of Title VII of the Civil Rights Act of 1964, Age Discrimination in Employment Act, Equal Pay Act, Rehabilitation Act, Americans with Disabilities Act, Family and Medical Leave Act, ERISA, Labor-Management Reporting and Disclosure Act, Fair Labor Standards Act, Worker Adjustment and Retraining Notification Act, and workers’ compensation laws. The publication also assists the practitioner with helpful checklists, practice pointers, cautions and warnings, citations to significant cases, and a statutory appendix.

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Tax Treatment of Discrimination and Other Employee Recoveries

The manner in which proceeds from employment-related litigation were to be taxed was unclear prior to 1996. That year, previously-established guidelines were fundamentally altered by the Small Business Job Protection Act of 1996 (the “Jobs Act”). Nine years later, the U.S. Supreme Court’s consolidated decision in Commissioner v. Banks and Commissioner v. Banaitis provided further guidance. In that opinion, the Court determined that, as a general rule, contingent attorneys’ fees constitute income to plaintiffs, resolving a bitter split among federal appellate courts.

This chapter from Employee Rights Litigation: Pleading and Practice (Matthew Bender) provides a comprehensive overview of the federal income tax treatment of monetary recoveries in the employment litigation context. The discussion initially addresses the Jobs Act; punitive damages; emotional distress recoveries; and the meaning of “physical” injury or illness for income tax purposes. Next, the chapter turns to the American Jobs Creation Act of 2004; the Banks decision; back pay awards; severance pay; and recoveries for contract-based, as opposed to personal injury, claims. The discussion concludes with coverage of mischaracterization of recoveries; recoveries subject to self-employment taxes; penalties for failure to withhold; discrimination recoveries; allocating proceeds among claims; and employers’ reporting obligations.

Employee Rights Litigation: Pleading and Practice (Matthew Bender) provides complete coverage of the basic legal standards governing the statutory and common law claims that can be raised on behalf of employees for discriminatory treatment or wrongful discharge. It contains analysis of Title VII of the Civil Rights Act of 1964, Age Discrimination in Employment Act, Equal Pay Act, Rehabilitation Act, Americans with Disabilities Act, Family and Medical Leave Act, ERISA, Labor-Management Reporting and Disclosure Act, Fair Labor Standards Act, Worker Adjustment and Retraining Notification Act, and workers’ compensation laws. The publication also assists the practitioner with helpful checklists, practice pointers, cautions and warnings, citations to significant cases, and a statutory appendix.

Liability for Wrongful Termination and Discipline

This chapter, Liability for Wrongful Termination and Discipline, provides an overview of wrongful termination law in California. It describes the employment at-will doctrine and discusses the exceptions to the at-will rule. The chapter examines the numerous state and federal statutes that provide protection to the employee against termination or other discrimination by the employer. It also discusses the three judicially developed exceptions to the at-will rule termination in violation of public policy, breach of an implied or express contract not to terminate except for good cause, and breach of the implied covenant of good faith and fair dealing and the applicability of principles of wrongful termination to disciplinary actions by the employer that fall short of actual termination. Finally, the chapter describes the remedies available to the plaintiff in a wrongful termination action, and covers the defenses that may be raised by the defendant.

The meaning and significance of employment at-will as codified in the Labor Code is discussed, the emergence of exceptions to the at-will doctrine including statutory exceptions, and judicial exceptions. The chapter provides a general introduction, as well as comprehensive coverage to California and federal statutory restrictions on employee discharge or discipline of employees. The chapter outlines violation of public policy and limitations on discharge including the elements for a cause of action for wrongful discharge in violation of public policy, a general discussion of the cause of action, the sources of public policy including legislative or constitutional bases, subsequent employer’s retaliation for protected activities in a previous job, actions against public entities, and actions against individuals. Also covered is breach of express or implied-in-fact promise not to terminate except for cause including contractual limitations on discharge including the elements of a cause of action, factors creating an implied agreement, the good cause requirement, and the effect of written employment contracts, handbooks, policies, and other writings.

The chapter considers breach of implied covenant of good faith and fair dealing generally, and provides the elements of a cause of action. It identifies employer actions short of actual discharge such as constructive discharge, wrongful discipline and demotion, and salary reductions. Finally, the chapter covers remedies in wrongful discharge action such as tort actions, contract action, issues of mitigation of damages and deduction of collateral compensation, and equitable remedies. The chapter discusses defenses to wrongful discharge actions such as the issue of preemption by statutory remedy, the statute of frauds, the parol evidence rule, statute of limitations, termination for cause, claim of no employment relationship, at-will employment of corporate officers, arbitration agreements, the effect of after-acquired evidence justifying termination, failure to exhaust internal grievance procedures, as well as potential counter-claims against employees, and the availability to the employer of the unclean hands doctrine of in the context of wrongful discharge.

Wilcox, California Employment Law (Matthew Bender) provides thorough coverage of California’s extensive private employment laws and regulations. It discusses key statutes, regulations and case law, with practice notes and commentary throughout. It covers all key topics, including wage and hour laws; employee illnesses and injuries; employer liability to third parties for employee conduct; equal employment opportunity; employee privacy; wrongful termination; trade secrets and unfair competition; unemployment and state disability insurance; and alternative dispute resolution.

Entrepreneurial Finance and Innovation: An Introduction and Agenda for Future Research

The increasingly large role played by financial intermediaries, such as venture capitalists and angels, in nurturing entrepreneurial firms and in promoting product market innovation has led to great research interest in the area of entrepreneurial finance and innovation. This paper introduces the special issue of the Review of Financial Studies dedicated to entrepreneurial finance and innovation and highlights some of the promising topics for future research in this area. The special issue combines papers presented at the June 2010 “Entrepreneurial Finance and Innovation (EFIC)” conference, which was jointly sponsored by the Kauffman Foundation and the Review of Financial Studies, with other related papers.

Employment-At-Will Exceptions and jobless recovery

This paper studies the effects on jobless recovery of diminishing the power of an employer to fire an employee through Employment-At-Will Exceptions (EWEs). I use dynamic panel regressions with quarterly data ranging from 1976 to 2010 for the 50 states in the U.S. I test both changes in state unemployment rates and state-weighted GDP growth. I also resolve differences in the various sources documenting the three types of EWEs in different states and show two of the three contribute significantly to jobless recovery in the U.S. The results lend support to predictions of theory that increased firing costs decrease the rate of hiring during recoveries. Statistical tests show the adoption of both EWEs would slow decreases in the unemployment rate during recovery from recession by up to 0.352 percentage points annually.

Duty of Fair Representation

It is well-settled that unions owe a duty to represent all employees in their respective bargaining units. Although this duty is not explicitly created by the National Labor Relations Act (“NLRA”), it has been implied from Section 9(a) of the Act, which grants unions the exclusive power to represent employees in their units.

As such, under NLRA Section 301 a wrongfully terminated employee may file suit in federal district court against both his employer (alleging that its conduct violated the labor agreement) and his union (alleging breach of contract and the duty of fair representation). A union’s breach of the duty of fair representation also constitutes an unfair labor practice under Section 8(b) of the Labor-Management Reporting and Disclosure Act.

This chapter from Employee Rights Litigation: Pleading and Practice (Matthew Bender) provides an overview of labor unions’ duty of fair representation. The discussion initially addresses historical development of the duty and pertinent U.S. Supreme Court decisions. Next, the chapter turns to subject matter jurisdiction; exhaustion of remedies; contractual grievance procedures; internal union procedures; and litigating fair representation claims through other claims, including Title VII actions. The discussion continues with coverage of issues of proof, investigating claims, and filing complaints. The chapter concludes with analysis of allegations of the complaint; discovery; pre-trial motions; right to a jury trial; and remedies.

Employee Rights Litigation: Pleading and Practice (Matthew Bender) provides complete coverage of the basic legal standards governing the statutory and common law claims that can be raised on behalf of employees for discriminatory treatment or wrongful discharge. It contains analysis of Title VII of the Civil Rights Act of 1964, Age Discrimination in Employment Act, Equal Pay Act, Rehabilitation Act, Americans with Disabilities Act, Family and Medical Leave Act, ERISA, Labor-Management Reporting and Disclosure Act, Fair Labor Standards Act, Worker Adjustment and Retraining Notification Act, and workers’ compensation laws. The publication also assists the practitioner with helpful checklists, practice pointers, cautions and warnings, citations to significant cases, and a statutory appendix.

 

Employment-At-Will Exceptions and jobless recovery

This paper studies the effects on jobless recovery of diminishing the power of an employer to fire an employee through Employment-At-Will Exceptions (EWEs). I use dynamic panel regressions with quarterly data ranging from 1976 to 2010 for the 50 states in the U.S. I test both changes in state unemployment rates and state-weighted GDP growth. I also resolve differences in the various sources documenting the three types of EWEs in different states and show two of the three contribute significantly to jobless recovery in the U.S. The results lend support to predictions of theory that increased firing costs decrease the rate of hiring during recoveries. Statistical tests show the adoption of both EWEs would slow decreases in the unemployment rate during recovery from recession by up to 0.352 percentage points annually.