Was I laid off because of my age? California's protections for workers 40 and over

Layoffs are often presented as purely financial, and many are. But the selection of who goes and who stays is still subject to the same anti-discrimination rules as any other firing. This page explains what an older worker has to show, the evidence that usually matters, the federal rules for releases offered to workers 40 and over, and the notice rules for larger layoffs. For the full list of protected characteristics, see our employment law page.

How does an age discrimination claim after a layoff work, step by step?

1. The layoff notice. Note the date, who told you, the reason given, and whether a group of employees was let go at the same time. For larger layoffs, check whether you received 60 days' written notice under California's WARN rules.
2. Final pay. The Labor Commissioner treats a layoff as a discharge, and for most jobs Labor Code section 201 makes final wages due immediately, whatever else is offered. Our page on final paycheck rules in California covers the penalty for late pay.
3. The severance offer. If a release comes with the layoff, California gives you at least five business days to consult a lawyer (Government Code section 12964.5(b)(4)). If you are 40 or older and the release covers federal age claims, federal law gives you 21 days to consider it, or 45 in a group program, plus 7 days to revoke after signing (29 U.S.C. 626(f)(1)).
4. Gathering the facts. Ask in writing for your personnel file and payroll records, and write down who was kept and who was let go. In a group program, the employer must give workers 40 and over a written list of the job titles and ages of those selected and not selected (29 U.S.C. 626(f)(1)(H)).
5. A Civil Rights Department intake. Age claims under the Fair Employment and Housing Act (FEHA) begin with an intake form to the Civil Rights Department, due within three years of the unlawful act (Government Code section 12960). Our guide to filing a Civil Rights Department complaint walks through the intake interview.
6. The right-to-sue notice. A lawsuit generally follows a right-to-sue notice, and the notice tells you that you may sue within one year from its date (Government Code section 12965).
7. Court in Los Angeles County. The Superior Court's statement of location form (LASC CIV 109) lists employment complaints as a case type that may be filed in the Central District downtown or in the district where the claim arose. Our guide to the Stanley Mosk Courthouse explains the first months after filing.

Who is protected?

Government Code section 12926(b) defines age as the chronological age of anyone who has reached a 40th birthday, and section 12926(d) defines an employer as one that regularly employs five or more people. Section 12940(a) makes it unlawful for such an employer to refuse to hire, to discharge, or to discriminate in pay or other terms of employment because of age.

What do I have to prove?

The Judicial Council's jury instruction for age discrimination (CACI 2570) lists the elements:

Because employers rarely admit an age-based motive, these cases are usually built from circumstances. The instruction's notes explain the three-step process California uses: the employee first makes a basic showing, the employer then states a non-discriminatory reason, and the employee shows that reason is a pretext. One court decision quoted in the instruction's sources describes the basic showing as being over 40, suffering an adverse action, performing satisfactorily, and circumstances suggesting discrimination, for example being replaced by someone significantly younger. The directions add that poor performance is the reason employers most often give.

Which deadlines and numbers apply in an age-based layoff?

What changes the answer?

These are the facts that most often decide whether a layoff points to age discrimination.

How the employer chose who to cut

In Government Code section 12941, the Legislature declared that using salary as the basis for deciding which employees to terminate may be found to be age discrimination if that criterion adversely affects older workers as a group, and that the disparate impact theory of proof may be used in age cases. The same section tells courts to interpret the age discrimination laws broadly and vigorously, comparable to the prohibitions on sex and race discrimination. A layoff that targets the highest-paid positions deserves a close look at who held them. So do selection criteria that were written down only after the layoff.

Who replaced you, or took over your work

Being replaced by someone significantly younger is the example the CACI 2570 sources give of circumstances suggesting discrimination. A layoff described as eliminating a position looks different if the duties move to a younger employee or a new hire soon after.

What was said, and by whom

Comments about age, retirement or "fresh energy" by the people who made the decision can be evidence. Government Code section 12923(c) says a discriminatory remark can be relevant circumstantial evidence even if not made in the context of an employment decision or by a decision-maker. If the comments were ongoing, our page on what to do after reporting harassment at work covers that separate claim.

Your performance record

Because satisfactory performance is part of the basic showing, recent reviews, raises and awards matter. Criticism that appears only once the layoff was being planned is worth comparing with the earlier record.

Whether it was a group layoff

A group program brings in the federal 45-day review period and the written disclosure of job titles and ages under 29 U.S.C. 626(f)(1)(H), and a large enough layoff at a covered site brings in the 60-day notice rule in Labor Code section 1401. Under section 1400.5, a covered establishment is an industrial or commercial facility that employs, or has employed in the past 12 months, 75 or more people, and an employee for these rules is someone employed for at least 6 of the 12 months before notice is due. The notice goes to the affected employees and to the Employment Development Department, the local workforce development board, and the chief elected officials of each city and county where the layoff happens (section 1401(a)). A missing notice is a separate issue from discrimination, but it is worth checking.

A worked example

For example, imagine a hypothetical 58-year-old account manager at a Glendale insurance brokerage, one of the two highest-paid people on a team of nine. The company announces a "reorganization" and lets go of her and one other manager, aged 61. Both are offered four weeks of pay for a general release with a seven-day signing deadline. Two months later, the company posts a job with most of her former duties under a new title.

Several rules come into play. Because two people were let go together under one program, she may be entitled to 45 days to consider the release, 7 days to revoke it, and a written list of the job titles and ages of those selected and kept. Section 12964.5 gives her at least five business days to consult a lawyer. Choosing the highest earners can be age discrimination under section 12941 if it falls harder on older workers as a group. The reposted job may show the position was not truly eliminated. She has three years to file with the Civil Rights Department.

She asks for her personnel file and the group disclosure in writing and does not sign by the deadline the employer set. None of this tells her whether age was the reason or how a claim would end. It tells her what information she is entitled to before deciding.

Common mistakes after an age-based layoff

• Accepting "it was just a layoff." The label does not settle anything; the question is how people were selected.
• Signing before the review period ends. A release usually gives up discrimination claims. Our page on whether to sign a severance agreement in California explains what to check.
• Not asking for the group disclosure. In a group program, the list of ages and job titles is something federal law requires the employer to provide.
• Losing track of who replaced you. Job postings and announcements after the layoff fade quickly; save copies.
• Waiting too long. The three-year Civil Rights Department window keeps running during severance talks. Our table of employment claim deadlines in California lists the limits.

What to do this week

1. Write down the date of the layoff, who decided, the reason given, and the names, approximate ages and roles of everyone let go and kept.
2. Ask in writing for your personnel file and payroll records; our page on getting your personnel file and payroll records has the deadlines.
3. Count the days on any release: five business days under California law, and 21 or 45 days if you are 40 or older and federal age claims are being waived.
4. Save any job postings for your former role or duties, and your recent reviews.
5. Use our checklist for the first week after being fired for unemployment and other immediate steps.
6. Talk to an employment lawyer before signing anything.

Frequently asked questions

Does it matter how old my replacement is?

It can. The CACI 2570 sources give replacement by someone significantly younger as an example of circumstances that support an inference of discrimination. It is not the only way to show it, and it does not prove discrimination by itself.

Is it age discrimination to lay off the highest-paid employees?

It can be. Government Code section 12941 says using salary to decide who is terminated may be found to be age discrimination if it adversely affects older workers as a group.

My employer has only six employees. Am I covered?

Yes, if the employer regularly employs five or more people. That is the definition of an employer in Government Code section 12926(d).

The release says I waive age claims. Can I still change my mind after signing?

If you are 40 or older and the release covers federal age discrimination claims, 29 U.S.C. 626(f)(1)(G) gives you at least 7 days after signing to revoke, and the agreement is not effective until that period ends.

What if the company did not give 60 days' notice of a large layoff?

If the Cal-WARN rules applied, Labor Code section 1402 makes the employer liable for back pay and the value of benefits for the period of the violation, up to 60 days or half the days you were employed, whichever is smaller, reduced by certain payments the employer made.

Who pays the lawyer in an age discrimination case?

That depends on the claims and the agreement you make. Our page on who pays the lawyer in a California employment case explains the fee rules under FEHA.

How can Glendale Law help?

We look closely at the timing of a layoff, the reasons the employer gave, and who was kept, and we explain whether the facts point to age discrimination under California law. Workers anywhere in the county can read about local agencies and courts on our Los Angeles County employment lawyer page. Call (818) 244-9000 or request a consultation.