The Elder Law Forum

The Elder Law Forum by Professor Michael Myers Editor's Note: The Elder Law Forum is a public service of The University of South Dakota School of Law, an extension of the SENIOR LEGAL HOTLINE available at no cost to persons 60 and older at 605-677-6343 and mmyers@usd.edu during regular business hours. The Elder Law Forum delivers information and educational material by radio, a weekly newspaper column, and Law School research papers placed on the USD School of Law Web site. Professor Myers teaches Elder Law at the School of Law.

At 55, consider throwing

a "preemptive punch"

Sometimes you can smell it; sense it. All is not well on the job. You're in your 50s. Top management has changed, and suddenly you're being excluded from the decision-making that you have been a part of for years. And, lately, a superior has been outwardly hostile.

The economic graveyard is full of men and women who after decades of committed employment with a company found themselves dislodged, laid off, and put onto the street. Sometimes it comes surreptitiously and without warning. But usually there are warning signs.

That is what I heard from a daughter who called the USD Senior Legal Hotline (1-800-747-1895; mmyers@usd.edu): "I am concerned about my father," she said. "He believes he is being set up to lose his job. He's only 55. Is it okay if he calls you?"

The Hotline eligibility age has been 60. Beginning July 1, the Hotline will receive calls from persons age 50 and above. It has become apparent that legal problems associated with aging are common among persons in their 50s. "Have him call me," I responded.

Her father called the next day. He has been with a mid-sized manufacturer for 23 years. During the past three years a newer, younger management has taken over, implementing system changes that are superficial and costly.

"I don't feel like I fit in anymore, and I think they are coming after me. They've downgraded my responsibilities."

He concluded: "I know they are trying to build a case to fire me. Is there anything I can do before they drop the axe?"

"Maybe," I said, advising that a person does not have to wait until he or she is fired before seeking relief under the federal Age Discrimination in Employment Act. The Act forbids discrimination with respect to "compensation, terms, conditions, and privileges of employment, on the basis of age."

Upon hearing his full story I recommended he engage an attorney and consider filing a complaint with the EEOC, noting that the Act forbids retaliation for exercising rights established by the law.

"Sometimes good-natured passivity is not in your best interest," I said. "You may wish to throw a preemptive punch."

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