Scarinci Hollenbeck, LLC, LLCScarinci Hollenbeck, LLC, LLC

Firm Insights

EEOC Clarifies When Partnerships May Be Liable Under the ADEA

Author: Scarinci Hollenbeck, LLC

Date: October 22, 2013

Key Contacts

Back

The Age Discrimination in Employment Act (ADEA) protects employees and job applicants, 40 years and older, from discrimination on the basis of age in hiring, promotion, discharge, compensation, or terms, conditions or privileges of employment.

Further, the ADEA does not permit involuntary retirement predicated on age except where age is a bona fide occupational requirement (e.g., an airline pilot) or the involuntarily retired employee is a bona fide executive, aged 65 or older, who receives an annual retirement benefit of not less than $44,000. See, 29 U.S.C. §§623(f), 631(c).

It is often assumed that the ADEA does not apply to age discrimination claims brought by partners who are not common law employees. The Equal Employment Opportunity Commission (EEOC) recently addressed this issue in a letter to an undisclosed recipient who sought guidance on mandatory retirement as imposed by an accounting firm.

Citing existing U.S. Supreme Court and federal court precedents, the EEOC stated that the following six factors should be used to determine if a partner would be classified as an employee for purposes of determining application of the ADEA:

  • Whether the organization can hire or fire the individual or set the rules and regulations of the individual’s work;
  • Whether and, if so, to what extent the organization supervises the individual’s work;
  • Whether the individual reports to someone higher in the organization;
  • Whether and, if so, to what extent the individual is able to influence the organization;
  • Whether the parties intended that the individual be an employee, as expressed in written agreements or contracts; and
  • Whether the individual shares in the profits, losses, and liabilities of the organization.

The EEOC letter stressed that this is a factual determination that should be guided by existing law rather than by expansion of the law’s scope through administrative fiat.

While the letter does not serve as an official EEOC precedent on this issue, it is clear that partnerships may be exposed to ADEA liability. Therefore, we encourage partnerships with mandatory retirement to carefully review their retirement policies.

If you have any questions about the EEOC letter on the ADEA or would like to discuss the legal issues involved, please contact me, Gary Young, or the Scarinci Hollenbeck attorney with whom you work.

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Scarinci Hollenbeck, LLC, LLC

Related Posts

See all
What Business Owners Get Wrong Before Meeting a Litigation Attorney post image

What Business Owners Get Wrong Before Meeting a Litigation Attorney

What should you expect when meeting a litigation attorney about a business dispute? You should expect to describe the dispute in your own words, hand over the most important documents, flag any deadlines or immediate threats, and leave with a clearer picture of the problem, what information is still needed, and the likely next steps. […]

Author: Michael Mietlicki

Link to post with title - "What Business Owners Get Wrong Before Meeting a Litigation Attorney"
Arbitration vs. Litigation vs. Mediation: What New Jersey Businesses Should Know Before Signing a Contract post image

Arbitration vs. Litigation vs. Mediation: What New Jersey Businesses Should Know Before Signing a Contract

Arbitration resolves disputes privately before an arbitrator whose decision is usually final, while litigation resolves them in court with full rights of appeal. Whether a business ends up in arbitration or litigation is often decided when it signs the contract, long before any dispute arises. Key Takeaways When facing a contract dispute, carefully consider your […]

Author: Graham Staton

Link to post with title - "Arbitration vs. Litigation vs. Mediation: What New Jersey Businesses Should Know Before Signing a Contract"
Can You Own Part of a New Jersey Business Without a Written Agreement? post image

Can You Own Part of a New Jersey Business Without a Written Agreement?

Can you own part of a business in New Jersey without a written agreement? Yes, it is possible. Under New Jersey’s Uniform Partnership Act, a partnership can arise when two or more people carry on a business as co-owners for profit, whether or not they ever intended to form one. Ownership doesn’t necessarily depend on […]

Author: Michael Mietlicki

Link to post with title - "Can You Own Part of a New Jersey Business Without a Written Agreement?"
Crisis-Proofing Your New Jersey Business: Building a Crisis Response Plan Before You Need One post image

Crisis-Proofing Your New Jersey Business: Building a Crisis Response Plan Before You Need One

For New Jersey businesses, crisis preparedness should be viewed as a legal and operational function, not simply an emergency-management exercise. A well-designed crisis response plan can help preserve evidence, protect confidential communications, meet reporting obligations, limit unnecessary exposure, and prevent an already difficult situation from becoming a larger legal problem. Key Takeaways A serious crisis […]

Author: Sean M. Pena

Link to post with title - "Crisis-Proofing Your New Jersey Business: Building a Crisis Response Plan Before You Need One"
Monmouth County's Next Development Wave: What Developers and Investors Need to Know post image

Monmouth County's Next Development Wave: What Developers and Investors Need to Know

Monmouth County is entering a significant new phase of development. For those looking to acquire property or undertake a new project, understanding the market opportunity is only the beginning. The more important question is whether a particular property can actually be developed as contemplated and what approvals, agreements, and other conditions will be required to […]

Author: Donald M. Pepe

Link to post with title - "Monmouth County's Next Development Wave: What Developers and Investors Need to Know"
Are Your Conversations with AI Shielded from Discovery? Courts Are Split post image

Are Your Conversations with AI Shielded from Discovery? Courts Are Split

Whether a client’s prompts to a generative AI tool and the documents it produces are protected from disclosure depends on the case type, who claims protection, and whether counsel was involved. In United States v. Heppner, a New York federal judge ruled that a criminal defendant’s communications with an AI platform were protected by neither […]

Author: Chris Seelinger

Link to post with title - "Are Your Conversations with AI Shielded from Discovery? Courts Are Split"

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Sign up to get the latest from our attorneys!

Explore What Matters Most to You.

Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.

Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.

Let`s get in touch!

* The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form. By providing a telephone number and submitting this form you are consenting to be contacted by SMS text message. Message & data rates may apply. Message frequency may vary. You can reply STOP to opt-out of further messaging.
“If you would like to submit a file, please email it directly to info@sh-law.com.

Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!