Help Wanted: Must a volunteer give age?

DEAR CARRIE:  I volunteer at a local church, and the pastor is asking for the ages of the volunteers. Is this legal? I thought that employers couldn't legally ask someone's age. Is it different for volunteers? -- Too Much Info?

DEAR TOO MUCH: For help in answering your question, I turned to the Equal Employment Opportunity Commission, which enforces anti-discrimination laws in the workplace.

The Age Discrimination in Employment Act, or ADEA, which forbids age discrimination against workers 40 or older, could come into play here, said Elizabeth Grossman, acting district director in the EEOC's New York district office in Manhattan.

"While the ADEA applies to applicants and employees . . . in certain circumstances a volunteer may be considered an employee for purposes of ADEA protection," Grossman said.

The ADEA doesn't specifically prohibit an employer from asking an applicant's age or date of birth, she said.

"However, because such inquiries may deter older workers from applying for employment or may otherwise indicate possible intent to discriminate based on age," Grossman noted, "requests for age information will be closely scrutinized to make sure that the inquiry was made for a lawful purpose, rather than for a purpose prohibited by the ADEA."

That law forbids age discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, and any other term or condition of employment, Grossman said.

She added that if employers need information about age for "a lawful purpose," they can obtain it after hiring an applicant.

"Many employers are obligated to keep records which include the date of birth of each employee on the payroll," she said. "As such, there may be a legitimate, nondiscriminatory purpose in an employer's request." 

DEAR CARRIE: Because of the economy, my company recently had pay cuts. Most employees, including me, had to take a 10 percent cut. Despite that, some employees continue to earn overtime pay. My question is: How can a company cut employees' salaries and still allow some people to work overtime hours or even extra days? Is this legal in the eyes of the Department of Labor? -- Unlawful Inconsistency?

DEAR UNLAWFUL: This practice has become increasingly common because of the weak economy. Some companies have cut employees' pay but continue to pay overtime because workloads haven't shrunk. And the seemingly contradictory practice is legal, as long as the company doesn't discriminate in doling out overtime hours.

"Employers may lawfully make business decisions that employees do not agree with, like cutting wages to reduce expenses, and then paying employees to work overtime hours," said employment attorney Ellen Storch, counsel at Kaufman Dolowich Voluck & Gonzo in Woodbury. "As long as an employer is not making decisions as to which employees have the opportunity to work overtime in a discriminatory manner, or in violation of a contract, such decisions are lawful."

It's worth mentioning that state labor law requires companies to notify employees in writing before a pay change takes effect. 

DEAR CARRIE: Can a company suspend its paid vacation policy without proper notice? -- Unlawfully Shorted

DEAR UNLAWFULLY: The answer is a resounding "No." Employers can change their paid-time off policies, but they have to notify employees in writing in advance. And employers have to give employees any paid time off they accrued under the old policy. Companies don't have to offer benefits like paid time off. So when they do, they can set the terms. And they have to honor them.