My salary is frozen -- Is it age discrimination?

Carrie Mason-Draffen

12:42 PM EDT, March 14, 2008

DEAR CARRIE: I am on staff at a major university. On Jan. 1, 2005, the school introduced a new salary- increase policy that caps your base pay once it reaches the maximum for your category.

Since my current salary exceeds the maximum, I am excluded from increases. But I am eligible for merit payments to recognize work that meets or exceeds expectations. Before this new policy, the merit increases were added to my base salary. So it grew each year. Since the new policy took effect, I have received merit payments each year, but my base pay remains the same as it was in 2004. I estimate I have lost $7,500 so far. To add insult to injury, my merit increase was unusually small this year, 0.26 percent, compared with 3.5 percent last year. I asked the school to re-evaluate my position and reclassify me but was turned down because supposedly my current classification is the closest fit for the job I do. Now I wonder if the university is just trying to push older workers to take early retirement. Is this new pay policy legal? Can they freeze my salary? Those affected are all over 50. Is this age discrimination?

Feeling Unrewarded

DEAR FEELING: For an answer I turned to the U.S. Equal Employment Opportunity Commission, which enforces the Age Discrimination in Employment Act protecting workers 40 and older.

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Salary caps, per se, aren't illegal, according to Elizabeth Grossman, regional attorney at the EEOC's Manhattan district office. "An employer may have legitimate financial reasons for doing so," Grossman said.

The EEOC would consider a salary policy questionable if it lacked legitimate business reasons and had "a disparate impact" on older workers. And of course a policy that deliberately targets older workers would be discriminatory.

"A salary cap might be the cause of age discrimination if it was imposed in order to provide lower increases to older employees," Grossman said. But she doesn't think that reflects your situation. "The real issue here seems to be years of employment, not age," she said.

Since a new employee over 40 would be eligible for the same salary increases as younger employees, the policy doesn't seem biased, she said.

She expects this issue to resurface many times in today's workplace. "As today's workers appear to be on track for longer careers, we expect issues such as this to arise frequently in years to come."

For more information contact the EEOC at 800-669-4000 or go to eeoc.gov.

DEAR CARRIE: I would appreciate it if you could direct me to the provision of the law that talks about whether a worker has to be paid for time needed to change into a uniform.

Statute Please

DEAR STATUTE: That would be sections 785.24C, 785.25 and 785.26 of the massive Code of Federal Regulations. You can search for entries online at www.gpoaccess.gov/cfr/index.html.

The cases cited there deal with specific industries. But courts have generally held that changing into uniforms on the job is considered work, and hourly employees must be paid for it, according to Irv Miljoner, who heads the Long Island office of the U.S. Labor Department.

But 785.24c cites a key exception: If you change clothes at work for your own convenience and the clothing you don isn't related to your job, then the company doesn't have to pay you for that time.

In general though, Miljoner says, if you are required to wear specialized clothing to perform your job, you have to be paid for the time to change into or out of it at work.