Help Wanted: Hiring only retirees isn't age discrimination

DEAR CARRIE: I work at a private firm that provides security guards. It has adopted a policy that states that "all new hires must be retired law enforcement." Does this reflect a discriminatory practice? With our economy struggling to get a foothold and widespread unemployment, is this the correct hiring practice to follow? If a person applies and is denied a job despite being licensed through the state of New York as a security guard, does he or she have a case of discrimination?

-- Guarded View

DEAR GUARDED: For answers I turned to the U.S. Equal Employment Opportunity Commission, which enforces federal laws prohibiting employment discrimination.

"The scenario you describe does not, on its face, violate any of the EEOC-enforced laws, as it does not single out any protected group," said Elizabeth Grossman, acting district director in the EEOC's Manhattan district office. "The employer in question is certainly narrowing the age range of applicants by requiring that they have already reached retirement age in a law enforcement job, but this does not violate the Age Discrimination in Employment Act, as it is not illegal for an employer to favor an older worker over someone younger, even if both workers are age 40 or older."

But she added, "This policy should be very carefully considered as it might result in an adverse impact against applicants in certain protected groups, such as African-Americans, Hispanics and women, who have historically been subject to discrimination in certain law enforcement jobs."

The anti-bias laws that the EEOC enforces protects not only employees but also job applicants. It protects job applicants against employment discrimination involving such things as failure to hire because of race, color, religion, sex, pregnancy, national origin, age, disability or genetic information.

"My advice to employers engaging in recruiting is that they consider our diverse country and the increasingly global nature of the workforce," Grossman said. "In this context, having a diverse workforce is, at least, a business asset and, more likely, a business necessity."

DEAR CARRIE: Are seasonal businesses required to pay employees overtime after 40 hours under New York State or federal laws? --Seasonal OT?

DEAR SEASONAL: State law requires most seasonal amusement or recreational businesses to pay certain workers overtime, unlike federal statutes. And since state labor law is more strict on this issue than federal, state statutes would take precedence.

Under state law most seasonal businesses are required to pay nonexempt employees overtime for every hour over 40 in a week, said attorney Ellen Storch, counsel at Kaufman Dolowich Voluck & Gonzo in Woodbury. (Nonexempt employees are generally hourly workers.)

But here's the wrinkle: Under state law the overtime rate is 11/2 times the state minimum wage, as opposed to the federal overtime rate, which is 11/2 times the worker's regular hourly rate of pay. New York's minimum rate is $7.25 an hour, the same as the federal.

If the seasonal business is a summer camp, it's not required to pay overtime under state law, Storch said.

Federal law does not require seasonal businesses to pay overtime, Storch said.

But federal law does provide the definition of what constitutes seasonal businesses, a definition the state uses. For example, seasonal businesses can operate no more than seven months in a calendar year, and they face limits on what they can earn in a six-month period.

For more on prohibited employment practices, go to http://www.eeoc.gov/laws/practices/index.cfm;

For more on seasonal workers and state labor laws go to http://www.labor.ny.gov/sites/legal/counsel/pdf/Overtime/RO-07-0044%20Overtime%20-%20Seasonal%20Workers.pdf