Posts Tagged ‘age discrimination’

California Ordered To Defend Disability Payment Structure

JUNE 7, 1999 VOLUME 6, NUMBER 49

Federal law (the Age Discrimination in Employment Act–the ADEA) prohibits discrimination “against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s age.” The law specifically protects all employees over age 40.

Recently, the California Public Employees Retirement System (“CalPERS”) was accused of violating the terms of the ADEA in the way it calculates disability benefits. Under rules adopted in 1980, a disabled state employee is entitled to receive 50% of his or her income at the time disability began, but only up to the amount the employee would receive if he or she continued in active employment until age 55.

Imagine, for instance, that two California police officers were hired on the same day–one age 25 and the other age 45. One year later, they are both injured in the same accident. Under CalPERS rules, the younger officer receives half her salary at the time of the accident, but the older officer is limited to 20% of his salary.

In order to reach this result, CalPERS first assumes that both officers would have retired at age 55. Since the older officer would only have ten years of service, he would only be eligible to receive retirement benefits of 20% of his final salary. Since the younger officer would have thirty years of service, she would receive half her final salary in retirement benefits. In other words, the older officer would receive a lower disability benefit solely because of his age at the time of hiring.

But does this treatment discriminate against the older officer solely on the basis of age? California state employee Ronald Arnett and seven other employees argued that it did, and filed a class action against CalPERS and the State of California seeking to change the method of calculating disability benefits.

Prior to the 1980 change, CalPERS had paid 50% of the last salary to all disabled employees, regardless of age or remaining years of service. Of course, when the beneficiary reached retirement age, his or her benefit would then be converted into a retirement benefit, and an employee hired at an older age would find his or her retirement benefits reduced. In the meantime, however, the disability benefits would not be affected by the age of the employee at the time of hiring.

The 1980 change was adopted by the California Legislature as a cost-saving device. It seemed to have been approved by the U.S. Supreme Court’s holding in the 1993 case of Hazen Paper Co. v. Biggins. In that case, the employee alleged that his employer had dismissed him because he was just about to reach the number of years of service required for his pension plan to vest. That may be, ruled the U.S. Supreme Court, but it does not amount to age discrimination–if anything, it is discrimination on the basis of length of service, which is not the same thing as age.

In the CalPERS case, California argued that any disparate treatment was based on the prospective length of service, and so permissible. The U.S. Ninth Circuit Court of Appeals disagreed, and directed the case back to the trial court for a determination whether California’s 1980 law was in fact motivated by a discriminatory intent. While the California public employees did not win outright, they at least won their day in court. Arnett, et al, vs. CalPERS, June 2, 1999.

Age Bias Case

JANUARY 2, 1995 VOLUME 2, NUMBER 26

Sidney D. Krasner was 58 years old when his employer, broker Shearson Lehman Brothers, told him he would be demoted. After he complained to the federal Equal Employment Opportunity Commission, Krasner was fired from the new position to which he had been assigned.

Krasner sued, pointing out that the replacement hired for his original position was a 42-year-old man and that his ultimate firing occurred shortly after he complained of age bias. His employer claimed that the firing was the result of Krasner’s poor job performance.

Last month, a three-member arbitration panel (commonly used in cases involving claims by or against stockbrokers) awarded Krasner $765,000 in damages. The result may be the largest ever awarded by an arbitration panel.

Coping With Alzheimer’s

Ten tips for dealing with the stress of caring for an Alzheimer’s (or dementia) patient, from the Alzheimer’s Association:

Get a diagnosis as soon as possible.

Do legal and financial planning to avoid later stress.

Educate yourself on caregiving so that you can understand and address many of the behavioral symptoms.

Know what resources, such as adult day care, in-home assistance, etc., are available to help you.

Don’t try to do everything yourself. Get help from relatives or professionals.

Don’t forget to take care of yourself.

Manage your own level of stress by being aware of the symptoms, such as blurred vision, irritability, etc., and get help if you need it.

Learn to let go and let people help.

Be realistic, because until a cure is found, the progression of Alzheimer’s is inescapable.

Give yourself credit, not guilt. You are only human and every little thing you do for your loved one is something you should be proud of.

You might note that a recurring theme in these suggestions is the necessity to get help for the caregiver as well as the patient. Too often, family caregivers feel it necessary to try to do everything on their own. As Mace and Rabins say, in The 36-Hour Day“it is essential that you find ways to care for yourself so that you will not exhaust your own emotional and physical resources.”

The other suggestion modestly overlooked by the Alzheimer’s Association is to seek support from and contact with other caregivers. The Association and other support groups can be invaluable resources; the Tucson office of the Alzheimer’s Association can be reached at 322-6601.

Sayonara

According to the November issue of Men’s Health, the average cost of a funeral in the United States is approximately $3,800. In Japan, the average cost is $20,000.

Legislative Changes

JUNE 27, 1994 VOLUME 1, NUMBER 31

The 1994 session of the Arizona legislature ended in mid-April. Most of the new laws adopted during that session will become effective in about three weeks, and newspaper articles about those changes should begin appearing soon.

Several new laws are of particular importance to the elderly and disabled. The changes include:

Private Fiduciaries
Senate Bill 1103 directed the Arizona Supreme Court to develop a system for registration and regulation of private fiduciaries. Any person or organization serving as guardian, conservator or personal representative of a person or estate, unless related to the ward or decedent, must meet the Supreme Court’s standards.

In response to the new law, the Supreme Court has established a committee to draw up minimum standards, disciplinary rules and other regulatory provisions. It is unlikely that the rules will be ready by July 16 (the next meeting of the Committee is set for August 1), but some protection will be provided for incapacitated adults, children with substantial estates and heirs in the near future.

Pima County representatives on the Supreme Court committee include Robert Fleming, Hon. William Sherrill (the presiding Pima County probate judge) and Eleanor terHorst (the Court’s Probate Law Counsel). Any of the three would be happy to hear from concerned citizens, particularly those with first-hand knowledge of abuses and concerns with private fiduciaries in the past, or with suggestions for protective regulations.

Age Discrimination Cap Removed
Senate Bill 1226 removes the present cap of age 70 from Arizona’s Age Discrimination in Employment Act. Older employees are now protected from discrimination under the law.

Investment Advisors
After particularly complicated legislative wrangling, House Bill 2271 passed both houses and was signed by the Governor. This legislation creates a regulatory structure for investment advisors, requiring them to register with the Arizona Corporation Commission. Minimum qualifications were also established, and a mechanism to report abuses and suspend advisors from practice.

Respite Care
House Bill 2317 created a pilot project to provide respite care for the frail elderly. The primary focus of this legislation is on attempting to show whether respite care permits caregivers to function in their home-care roles for a longer period. Only $75,000 was allocated, and the pilot project was limited to Maricopa County, but it may signal an acknowledgement on the part of legislators that respite care is an important issue for the future, and perhaps a willingness to expand such a program.

State Retirement COLAs
Senate Bill 1058 introduced the concept of an automatic (or perhaps semi-automatic) cost of living adjustment to the Arizona State Retirement System. COLAs will be limited to half the increase in the Consumer Price Index (or 3%, whichever is less) and will only be available in years when funds are available (according to a formula adopted as part of the law). The COLA legislation automatically ends in five years.

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