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.

The U.S. Worker: A

Generation in Decline?

I was born in 1936, reared in the 1940s and early 50s. I understood the rules: serve your country, go to college on the G.I. Bill, work hard, and live a better life than your parents, who, presumably, lived better than their parents.

It was the traditional American plotline, "about the young people of each successive generation doing better than their parents' generation," writes Bob Herbert in a New York Times op-ed piece titled, "Dark Side of Free Trade." For me the rules worked, yielding four rewarding decades in journalism, law, hospital administration, and teaching, crowned by an exceptional wife and seven children.

But now something is amiss, contends Herbert:

"American workers are caught in a cruel squeeze between corporations bent on extracting every last ounce of productivity from their U.S. employees and a vast new globalized work force that is eager and well able to do the jobs of American workers at a fraction of the pay."

Two encounters this week supported his contention there exists within the U.S. workforce a growing anxiety, a sense among both young and old that the rules have changed.

"I have a baccalaureate from Wisconsin and a master's in health from North Dakota State," I was informed by a fit waitress in her mid-20s as she delivered a chicken sandwich and a single-dip hot-fudge sundae. "I just quit my job � a secretarial position with the government," she said. "I hated it. Now, I don't what to do." I suggested she pursue a doctorate.

The second was a letter from a woman, age 68, stating she had been precipitously and harshly terminated without warning from a company where she had worked for 18 years. "My job performance had been exemplary," she advised. A "corporate decision," she was told, cutting short her plan to retire at 70 with a funded 401(k) plan.

We met and evaluated the potential for an age discrimination in employment claim. She had believed that good job performance � not unions or federal laws � offered the best job security.

"I guess I was wrong," she mused. I informed her that South Dakota is an "employment-at-will" state, allowing employers broad discretion in deciding who, why and and when to fire. Also it is one of a handful of states with no law prohibiting age discrimination.

But in deciding who to terminate, even for cost-reduction purposes, an employer cannot discriminate on the basis of age. I will help her file a claim with the Equal Employment Opportunity Commission.

But relief is unlikely. Why? The rules have changed.

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