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John
John, Employment Lawyer
Category: Employment Law
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Experience:  Exclusively practice labor and employment law.
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Do I have a case? I am sixty one and worked for same company

Resolved Question:

Do I have a case?

I am sixty one and worked for same company for over 17 years.

Public corporation with over 500 employees.

My job was just terminated under pretext of poor performance.

Since April 2012, the employer has been hiring for positions in newly created, identical department in Guadalajara, Mexico while pushing the US-based, seasoned associates out the door.

Between April and December 2012, the outsourced staff in Mexico has grown over tenfold while US-based has substantially shrunk.

The managers were instructed to look for any pretext to write up US associates and let them go.

The employer was avoiding severance payment to US associates while offering cheaper compensation to outsourced staff.

Thank you for your time
Submitted: 9 months ago.
Category: Employment Law
Expert:  John replied 9 months ago.
Hi, My name is XXXXX XXXXX X’m happy to assist you with your question today. I'm sorry to hear about your termination.

To make a claim of discrimination you, or other similarly situated employees who are over 40 years old would have to prove in a lawsuit that the employer did not use any reasonable factor other than age to terminate employees. In this case the employer is going to state that it terminated employees because it is moving the operation to Mexico. The fact that the employer is attempting to avoid severance payments by pretextually claiming performance deficiencies is not relevant. See Reeves v. Sanderson Plumbing.(false pretense for termination where employer sought to avoid pension liability by terminating employees near retirement accrual is not ADEA protected). Thus, you'd be in the situation of having to prove that the employers' attempt to move operations to Mexico is not a reasonable factor. That's very difficult to prove...I'm not saying it's impossible to prove, but it would be difficult...you or the EEOC would essentially be in the position of questioning the employer's financial motive versus the effect of older workers. I'd have to estimate this as a having a low probability of success; but you never no.

In your case, however, you have noting to lose by filing with the EEOC and having them investigate the matter to review the employer's reasoning and motivations. It's free of charge to you and you're not getting any payout or severance in any event.
Customer: replied 9 months ago.



Good morning John, thank you for your reply.


 


 


Could you please elaborate on "you or the EEOC would essentially be in the position of questioning the employer's financial motive versus the effect of older workers?"


 


My former employer is one of five major US banks. Do you mean their financial motive like savings on lower entry level wages offered in Mexico, not having to provide benefits otherwise required by US regulations?


 


I understand that to offer a severance package is up to them, but if they laid off US associates without offering one, that would mean bad publicity. So they resort to deceitful practices.


 


How does it fit in my case?

Expert:  John replied 9 months ago.
Gretchen,

Thanks for your reply. To elaborate on that specific part of my answer. It is not unlawful to transfer work to Mexico for lower costs or to change a business model to be more effective. That such a change has an effect of terminating employees with seniority who also are largely in the protected class (40 plus years of age) would also not be adjudged to be discriminatory under the caselaw precedent of the ADEA. What you'd have to prove is that there was no reasonable factor other than age involved in the decision. So, for example, if you could find an internal email of management saying something to the effect that all our US workers are old so we should move this operation to Mexico. It's a fine distinction but makes all the difference in your situation.

With regard to the severance matter you seem to be saying they are terminating employees for false "performance" issue whereas their true motivation is just to move the operation to Mexico. This does nothing for you in terms of an age discrimination case. As stated above, if their motive is simply to move work to Mexico at lower cost, that is not prohibited by the law. It is sneaky the way they are doing it from a public relations perspective. However, you'd need to show the terminations were based on age.
Customer: replied 9 months ago.

I am still not clear. You wrote that false performance does nothing for me in terms of an age discrimination case. What about ROFA (reasonable factors other than age) defense to disparate impact claim?

Expert:  John replied 9 months ago.
Moving your job to Mexico to save money is a reasonable factor other than age. The fact that they want to hide that by claiming performance issues does not help you. You'll have to somehow prove in your matter that age was the reason that they are terminating you and others like you; not that they want to save money or be sneaky about moving jobs to Mexico. It maybe possible to prove that, but it will be difficult. I'd ultimately suggest you file with the EEOC because you have nothing to lose att his point.
Customer: replied 9 months ago.

I am sorry John, but I feel that you are getting impatient with me by suggesting I file with the EEOC, because I have nothing to loose at this point.


 


Please note that before asking question, I did indicate that I already checked on Internet how to file a dual NYSDHR/EEOC discrimination charge. See your "What have you tried so far?" section.



I anticipated some input from your service how to word my complaint, but you say that I do not have the case. Am I correct?

Expert:  John replied 9 months ago.
Gretchen,

Your ultimate question was " do I have a case". My response has in essence been - you have a small chance of success at a case, depending on what an investigation would find. There isn't a "yes or no" response to the question. To make a case you'd have to have some evidence, either now or through an investigation, that the termination was because of age because the law is eminently clear that terminating employees to save money is not illegal. You haven't stated anything in either your question or responses that would indicate you now have the evidence to prove a complaint. So the only way I see you being successful in this matter would be through an EEOC investigation that found evidence of age discrimination. To make a claim with the EEOC you have to allege that the termination was because your age; you don't need to have identifiable evidence at that point. Then the EEOC investigators will investigate the matter for such evidence - maybe they'll find something or maybe they will not - you never really now what they'll find. So, in short the only way you'll really know if you have a case is to file a charge. As it sits now, you haven't stated allegations that would sustain an action for age discrimination in a state or federal court.
John, Employment Lawyer
Category: Employment Law
Satisfied Customers: 2653
Experience: Exclusively practice labor and employment law.
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