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Pension Comparison Points Out a Problem : ALSO: Relocation Cuts Worker's Options : Checking Termination Reasons

June 23, 1996

Q I retired in 1979 from a large Orange County company after more than 20 years of service. My pension was calculated on a formula that included time of service plus base pay. During the hectic '60s and '70s, employees received numerous cost-of-living raises. In determining my pension, however, the company excluded all cost-of-living raises, maintaining they were not part of my base pay.

A few years after my retirement, I returned as a contract employee. In discussions with my fellow employees who were contemplating retirement I discovered that their pensions were to be considerably more than mine. When I asked, the company said it now incorporates all past cost-of-living increases into the base pay.

I feel that I have been discriminated against, since I received the same cost-of-living increases the later retirees received. Do I have a case here? --E.C., Laguna Hills


A To really know if you have a case, an attorney would have to thoroughly review and compare your pension plan documents with those of the current employees. I would specifically look for the formula for computing the base pay. You could compare those two documents yourself.

There is a statute of limitation deadline concern. Since you retired about 17 years ago, the company may argue that you have waived any claims related to your rights. Those deadlines would have long since passed.

However, you could argue that this is a continuing violation. Even if you might have waived some of your rights for a higher pension benefit for previous years, you still might successfully argue for recent and future years. Also, statute of limitations for fraud commence three years from the date that you have or should have discovered the fraud.

You should also evaluate the damages that you might suffer in the future. If it's a difference of a few hundred dollars a year, then it may not be worth your time or the interest of an attorney to pursue it further. However, if it results in a significant amount of damages to you over the coming years, it may be worth evaluating further. You may want to see an attorney who specializes in Employee Retirement Income Security Act law.

--Don D. Sessions

employee rights attorney

Mission Viejo

Drive to New Office Creates a Hardship

Q My employer is closing our department in Glendale and I have been sent to work in downtown Los Angeles. My commute is more than 60 miles and takes more than an hour. My schedule hours have changed. My job assignment is not the same.

We were told awhile back that employees who drove more than 50 miles to work were entitled to ETP (employee transition program) benefits or severance pay. But nothing official has been said or offered. Is there a law that protects employees from this type of hardship imposed on us?

I am tired of my employer changing locations (four times) and pushing employees to their limits. What can I do? I want out.

--L.I., Palmdale


A There is no law that forbids an employer from changing locations when it decides it is appropriate to do so. As is true of employees, employers are permitted to change locations to suit their needs and desires in terms of managing their work force most efficiently.

All that you can do to avoid being moved by this employer is to quit and find another job more to your liking. If your commute is substantially more onerous than it was before the move, it may be that you have "good cause" for resigning, and would be able to successfully claim unemployment benefits until you found a new position.

In addition, if your employer has a policy or has promised certain severance or other benefits under the circumstances, you would be able to enforce your employer's promise to provide you with such benefits.

--Michael A. Hood

employment law attorney

Paul, Hastings, Janofsky & Walker

Termination Raises Possibility of Age Bias

Q Last November, I was terminated. My employer said he was downsizing and would be retiring in April, 1996. I had been employed by him for 36 years and two months to the day. I was paid my remaining vacation and severance pay, plus a bonus check for my years of service.

I have now found out that my former employer did not retire, and it has been suggested that I may have been terminated illegally or discriminated against. He is 72 and I have just turned 60.

Do I have legal recourse and should I seek an attorney knowledgeable in labor laws?

--P.P., Panorama City


A You don't state why you believe you were discriminated against. If you were replaced with a younger person or if younger employees were retained subsequent to your termination in the same job as you held, you may have a viable age discrimination claim, provided your former employer cannot show a legitimate, nondiscriminatory reason for your termination.

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