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socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 37808
Experience:  Retired (mostly)
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I was just laid off from my employment on Thursday, September

Resolved Question:

I was just laid off from my employment on Thursday, September 1, 2011 after 43 years of service. I was given a 60-day notice with an effective termination date of November 1, 2011.
The reason for my lay off (according to my boss and Human Resources) is that my position is being eliminated due to an "upcoming" reorganization. I am not aware of my duties going outside the company and the reason I say this is because my current boss is beng persistent about my going into the office to execute a transition plan and to "train" one of the other coworkers on issues relating to my job duties. They also want to announce my departure as a "retirement" because again, acccording to my current boss, this is the company's way of not making it appear to my coworkers and others as
though I am being kicked out!

I am looking for legal advice on this matter especially since there have been instances
last year and prior of retaliation and harrassment. I have met or exceeded on my job
performance for the last 42 years up until this year when my performance was blemished
even after I pursued this issue with our head of H.R.

I would like to get some direction or insight on this as well as have an attorney
review the Waivers and Releases I am required to submit.

I can be reached at (XXX) XXX-XXXX or (XXX) XXX-XXXX.
Submitted: 5 years ago.
Category: California Employment Law
Expert:  socrateaser replied 5 years ago.

Your question has been sitting around for several hours. If you still need assistance, please let me know and I will try to assist.

Customer: replied 5 years ago.
Received a text alert that more information is needed. What would this information be?
Expert:  socrateaser replied 5 years ago.
I don't need more info. Communications that are not Answers, are simply called "info Requests" by the website operator.

Under the California Fair Employment and Housing Act, age discrimination occurs where the following elements are proved by the employee:

  1. "at the time of the adverse action he or she was 40 years of age or older,
  2. "an adverse employment action was taken against the employee,
  3. "at the time of the adverse action the employee was satisfactorily performing his or her job and
  4. "the employee was replaced in his position by a significantly younger person." Hersant v. California Dept. of Social Services (1997) 57 Cal.App.4th 997, 1002-1003.

However, where the employer's reason for downsizing is undisputed (i.e., there is proof of adverse economic conditions actually affecting the employer's ability to maintain the present workforce), the employer may have a valid defense. See Guz v. Bechtel Nat'l, Inc. (2000) 24 Cal.4th 317 at 367.

In plain English, if you are being replaced by a significantly younger worker, and the employer is not actually suffering a large downturn in business, necessitating a large reorganization, then you probably have an age discrimination action.

Much of this must be discovered, i.e., employer's accounting records, etc. But, that's part of the litigation process. You can file a complaint with the Department of Fair Employment and Housing, or you can hire a private lawyer and let him/her sue on your behalf (and/or, try to negotiate a settlement).

Or, you can sign the severance agreement. Most such agreements are fairly standard "boilerplate." If you sign, you get money, and you waive your right to sue.

However, if you agree to resign/retire, then you are also barred from receiving unemployment benefits. So, be careful about this, because in my view, it may be intended to trick you, so that the employer's cost of eliminating employees is substantially reduced.

Hope this helps.

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