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Government, Special Jobs May Require Applicant's Age

November 21, 1994

Question: I have recently filled out an application for federal employment (SF 171), and one of the first items asked for was my date of birth. Is it legal to require this information on an application form?

--A.H., Irvine

Answer: It is normally improper to ask a person's age on an employment application as it is considered good evidence of age discrimination.

However, there are exceptions to that rule. Occasionally, such questions, especially with the federal government, might be reasonably required because of the work involved. The availability of insurance for that particular job might depend on the applicant's age. Certain types of jobs, in fact, might have restrictions because of the special physical conditions of the job. Some employers are required to ask a question that seems discriminatory on its face to comply with affirmative action requirements.

Even though there are many rules in this and other areas that apply to employers as a whole, very often the federal government carves out an exception for itself. On the other hand, as a general rule, government employers are subject to even more stringent rules than required in the private sector.

--Don D. Sessions, Employee rights attorney, Mission Viejo

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Question: I've worked at a bank for a year and a half, most recently as an agent for commercial real estate loans. As part of a promotion earlier this year, I received a six-month contract with a guaranteed monthly salary. When the contract expired, I was told that I could stay at the bank, but only if I worked on a commission-only basis, which is difficult to afford.

Would this be considered a legitimate reason to quit and collect unemployment insurance? It's awfully hard to look for a job and still work here.

--G.L., Fountain Valley

Answer: It is unclear whether you are an employee of the bank or an independent contractor. If you were an employee when your contract expired and continued as an employee when working on a commission-only basis, it can be argued that you would be eligible for unemployment.

The argument you would make is that the employer caused a change in your job or working conditions that would make a reasonable person quit under these circumstances (i.e., you were effectively demoted with lesser pay).

If you are an independent contractor, then you would not be entitled to unemployment benefits. However, if your employer categorizes you incorrectly as an independent contractor when you are in reality an employee, you may still be eligible for benefits. Whether you in fact are an independent contractor depends on a number of factors, including the degree of control the bank has over the conditions of your employment.

--Thomas M. Apke, attorney, Professor of business law, Cal State Fullerton

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Question: I work for a large aerospace company in Orange County. One of the things they have done to us in the past couple of years regarding pay raises is that if you are near the top of your pay range, they give you a lump-sum increase, which does not increase your base pay. I would guess 80% to 90% of those affected are in the over-50 age group. Is this discrimination, de facto or not?

--J.J.

Answer: Both federal and state law prohibit discrimination on the basis of an employee's age. However, generally there is no discrimination unless the members of the protected group are treated differently from others who are similarly situated, In the situation that you describe, it appears that everyone at the same pay level is treated equally. The effect on those over 50 would therefore be a function of their seniority and pay levels, rather than their age.

--Calvin House, attorney, Fulbright & Jaworski L.L.P., Adjunct professor, Western State University College of Law

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Question: I work as a senior manager for McDonnell Douglas in Long Beach on the C-17 program. We seem to have an in-house, double standard on how we compensate employees for working an extended week. My department, which installs fuel systems and pressurizes the fuselage to check for leaks, is limited to paying each worker no more than $1,200 per week, including overtime.

But other departments, such as the one that installs flight controls, hydraulics and prepares the planes for final review, can pay up to $1,500 per worker. This doesn't seem fair to the workers or to me. What can I do?

--D.K., Anaheim

Answer: Probably not much. The C-17 project is governed by a contract between your employer and the federal government. That contract establishes a cost for the entire project, and your employer has budgeted for the costs of each division as it relates to the contract. An employer is free to determine the budget for each division and how much to pay employees within that division. However, the employer must not establish wages based on race, sex or other protected classifications.

--William H. Hackel III, Employment law attorney, Spray, Gould & Bowers

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