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AGE DISCRIMINATION AND LOSAPs
EEOC Determination Mandates LOSAP Points

By Edward Holohan, Actuary and Penflex President, 10/23/02

A determination issued by the U.S. Equal Employment Opportunity’s New York District Office on September 4, 2002 ruled that not allowing volunteer firefighters points after the entitlement age is in violation of the Age Discrimination in Employment Act of 1967. The determination was written by District Director Spencer H. Lewis and addressed to a Long Island Fire District and to one of its former volunteer firefighters who filed the complaint after his continued LOSAP participation was denied by the fire district on grounds that he had exceeded the entitlement age.

The determination states: “Because Respondents (the Long Island Fire District) do not allow volunteer firefighters over the Normal Payment Age to receive credit towards the Service Award, I find that the Normal Payment Age to receive credit towards the Service Award, I find that the Respondent’s policy violates the ADEA. Respondents discriminated against the Charging Party and other active volunteer firefighters over age 65 by now allowing them to accrue service award points because of their age. In addition, to the extent that the age limitation precludes individuals from becoming eligible for a service award at all, Respondents discriminated against the Charging Party and other active firefighters over age 65 by not allowing them to participate in the service award points because of their age.”

The final sentence in the same paragraph reads, “Respondents’ reliance of state law is not a defense.” This statement implies that this federal law supersedes New York state law. As a result of this determination, the fire district is expected to “join with the collective efforts toward a just resolution of this matter.” The EEOC aims to come to an agreement with the fire district with the intention of eliminating what the commission describes as “the alleged unlawful employment practice by informal methods of conference, conciliation and persuasion.”

Although the fire district can legally fight this determination, the EEOC’s determination are seriously considered by all levels of the judicial system. The attorneys we consulted about this ruling indicated that there would be little chance of it being overturned.

For years, Penflex has stood behind a volunteer’s right to earn points after the entitlement age. Many of Penflex’s clients per our suggestion have already included this provision in their LOSAP. Through our client newsletters and our consulting services we have continually supported post-entitlement age awards and have regularly updated our 200 New York State LOSAP clients on this and other important issues.

This entitlement age debate is far from settled. The implications and consequences of this ruling will raise serious questions and concerns. Will fire districts owe volunteers retroactive payments? What happens if LOSAP costs now exceed voter approved referendum costs? Will senior firefighters who ceased to be active because they were told they could not longer earn points be able to file age discrimination claims?

Stay tuned for further developments.