Age discrimination, disability benefits and mandatory arbitration are some of the key issues
by Kenneth Terrell, AARP, October 2, 2018
The U.S. Supreme Court started its 2018 term this week. The eight justices currently on the court will hear arguments in several cases that could affect the rights of older workers. Among the key issues in those suits are:
Age discrimination in public jobs
Private employers who run businesses that have fewer than 20 employees are exempt from the Age Discrimination in Employment Act (ADEA), which is the federal law that protects older workers from age discrimination. In Mount Lemmon Fire District v. Guido, the issue is whether small public agencies also are excluded from ADEA requirements. In 2009, two firefighters — ages 46 and 54 at that time — were fired by the Mount Lemmon Fire District in Arizona. The firefighters filed an age discrimination lawsuit under the ADEA, and the federal district court ruled in favor of the fire department. But the federal circuit court ruled for the two firefighters.
The Supreme Court’s ruling could have a wide impact for older adults working for local and state governments across the country. If the high court decides these small agencies don’t have to follow the federal age discrimination law, these workers will have to rely on whatever protections their states’ laws provide.
Social Security disability benefits
More than 2 million people apply for Social Security disability benefits each year. To be eligible, a medical condition must prevent the applicants from working — either in their current positions or other jobs they might be qualified to do — for at least 12 straight months. In many cases, an administrative law judge decides whether a disability applicant is capable of working. In Biestek v. Berryhill, the Supreme Court will decide whether an administrative judge can rely solely on expert testimony, without the underlying data on which the testimony is based, or if more evidence is needed.
Michael Biestek, a carpenter, applied for Social Security disability benefits when he was unable to work due to a degenerative disc disease. When he was originally denied benefits, Biestek asked for an administrative hearing to appeal the decision. In that hearing, a vocational expert testified that there were a variety of jobs still available to Biestek despite his condition. But when the former carpenter asked the expert to provide more information about the jobs, the administrative law judge said the expert did not have to respond. The judge ultimately denied Biestek disability benefits.
According to at least three federal circuit courts, experts in these types of hearings aren’t required to produce evidence that the jobs they say the applicants are suitable for actually exist. The Supreme Court’s ruling on what type of evidence is required in these hearings will play a major role in determining how decisions are made to approve or deny disability benefits to those applying for them.
Independent contractors’ access to court
Jobs such as driving for Uber or Lyft can be particularly appealing for older workers and retirees, who basically become independent contractors when they do these kinds of jobs. One case before the Supreme Court this term, New Prime Inc. v. Oliveira, could potentially affect whether independent contractors who work in transportation are able to take their employment disputes to the courts instead of to arbitration.
The Federal Arbitration Act (FAA) permits companies to require their employees to agree to resolve disagreements in arbitration. But that law has an exemption for “contracts of employment of seamen, railroad employees or any other class of workers engaged in foreign or interstate commerce.” One question the Supreme Court will answer in the New Prime case is whether this exception applies to independent contractors or just employees.
Dominic Oliveira worked as a driver for New Prime, an interstate trucking company. He began as an independent contractor and later was hired as an employee. In 2015, he filed a suit against the company saying that New Prime violated Missouri’s minimum wage statute, among other complaints. New Prime then tried to force the dispute into arbitration, eventually leading the case to the Supreme Court this term. Both the federal district and circuit courts ruled for Oliveira.
The recall: The recalled Flushmate II 501-B pressure-assisted flushing systems included in this recall were sold individually and installed in toilets manufactured by American Standard, Corona, Crane, Kohler, and Mansfield.
The flushing systems were manufactured between September 1996 through December 2013. They are rounded oval, black, two-piece vessels made of injection molded plastic and have a date code/serial number that is 15 characters long and located on the label on top. (Read the full recall notice from the Consumer Product Safety Commission.)
The first six numerals of the serial number are the date code. The date code range for units included in this recall in MMDDYY format is 090396 (Sept. 3, 1996) through 120713 (Dec. 7, 2013). The model code is 10 characters long and is located on the same label. The model code starts with M and ends with F.
The risk: The system can burst at or near the unit’s weld seam in the middle of the unit and release stored pressure. That pressure can lift the tank lid and shatter the tank, posing impact and laceration hazards to consumers, as well as the possibility of property damage.
Incidents/injuries: Flushmate has received 1,453 reports in the U.S. and Canada of the units bursting, resulting in 23 injury reports, with one requiring foot surgery, and property damage totaling about $710,000.
Where and when sold: The toilet inserts were sold at Home Depot and Lowe’s stores, as well as by toilet manufacturers, distributors, and plumbing contractors nationwide. They were also sold online at grainger.com, hdsupply.com, homedepot.com, and other online retailers from September 1996 through December 2015 for about $108 for the units without toilets.
The remedy: Consumers should stop using the recalled Flushmate II 501-B systems, turn off the water supply to the toilet, and flush the toilet to release any internal pressure. Consumers should contact Flushmate to request a free Flushmate replacement unit and installation by a technician.
Contact the manufacturer: To contact Flushmate, call 844-621-7538 or go to flushmate.com/501B-recall. Flushmate is sending notices of the recall to consumers who registered their products.
Report a defective product: Call the CPSC hotline at 800-638-2772 or go to saferproducts.gov.