September 17, 1985
Mr. Lee Schoenbeck
Day County State's Attorney
Post Office Box 181
Webster, South Dakota 57274
OFFICIAL OPINION NO. 85-38
Age-based mandatory retirement from employment in county government
Dear Mr. Schoenbeck:
You have requested an official opinion from this office in regard to the following factual situation:
FACTS:
The Day County Commission on January 8, 1962, approved the following resolution which mandates that 'all employees of the Day County Highway Department shall retire upon attaining the age of 65 years, subject, however to the condition that each such employee attaining age 65 shall be permitted to work for Day County Highway Department for a period of 30 consecutive additional days upon attaining age 65.' Since its inception, Day County has failed to uniformly apply this policy. The Day County Highway Department presently has several employees who have reached 65 or who will be 65 in the near future.
Based on the above facts, you have asked the following questions:
QUESTIONS:
1. Is it permissible for county government to enact a mandatory age-based retirement policy as set forth in the facts above?
2. If it is permissible for the county to enact an age-based retirement policy, is it permissible to use age 65 as the retirement trigger?
3. Can the county now enforce an age-based retirement criteria when they have not uniformly enforced the policy in the past?
4. If an age-based retirement policy is permissible, and the county now intends to implement one, should the county pass a new resolution that would then be strictly enforced?
IN RE QUESTION NO. 2:
The resolution passed by the Day County Commission creates a mandatory retirement policy requiring all of the employees of the County Highway Department to retire upon the age of 65 years. Although this policy does not violate any provisions of South Dakota state law, it is directly violative of federal law as codified in the Age Discrimination in Employment Act of 1967 (hereinafter 'ADEA').
Discrimination on the basis of age is not prohibited under the codified laws of South Dakota, SDCL 20-13-10. Employees of the Career Service Personnel Management System, however, are protected from discrimination on the basis of age between the ages of eighteen and seventy years pursuant to SDCL 3-6A-15. Other state, county and private employees are not protected against age discrimination. Thus, the Day County resolution does not violate South Dakota law, because lower level state and county employees are not protected.
The resolution is however, directly violative of federal law. In 1967, Congress passed the Age Discrimination in Employment Act and amended it in 1974 and 1978. The act now prohibits discrimination in employment against individuals who are at least 40 years of age but less than 70 years (i.e. 40 through 69. 29 U.S.C. § 621-634 (1976 Supp. III 1979). The 1978 amendment raised the protective ceiling from 65 to 70 years.
The mandates of the ADEA are applicable to state and political subdivisions. The Act defines an employer as one engaged in an industry affecting commerce with 20 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. Section 11(b) 29 U.S.C. 3630(b) (1976). The issue of whether the Tenth Amendment precludes Congress from applying the ADEA to state employees was resolved by the Supreme Court in 1983. The Supreme Court, reversing a lower court determination, held that the Tenth Amendment does not preclude application of the ADEA to state and local government employees. EEOC v. Wyoming, 460 U.S. 226, 31 FEP 74 (1983). Thus, the Day County Highway Department is an employer as defined under § 11(b) of the ADEA and must comply with the regulations contained therein. The age-based policy set forth by the Day County Commission's resolution is impermissible.
IN RE QUESTION NO. 2:
Day County may enact an age-based retirement policy, but it is illegal to use age 65 as the trigger for retirement. The ADEA as amended prohibits discrimination against individuals who are at least 40 years of age but less than 70 years (40-69). The purpose of the act is to promote employment of older persons based on their ability rather than age, to prohibit arbitrary age discrimination in employment and to help employers and workers find ways of meeting problems arising from the impact of age on employment. In order to comply with the act, employees cannot be forced to retire before age 70 unless after a case-by-case determination it can be shown that the individual falls within one of the categories set forth in Section 4(f) of 29 U.S.C. § 623(f) (1976 Supp. III 1979.)
Section 4(f) sets forth five affirmative defenses which would allow retirement before age 70. The section reads as follows:
It shall not be unlawful for an employer employment agency or labor organization--
(1) to take an action otherwise prohibited . . . where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business . . .
(2) to take any action otherwise prohibited . . . where the different action is based on reasonable factors other than age . . .
(3) to observe the terms of a bona fide seniority system . . .
(4) to observe the terms of . . . any bona fide employee benefit plan . . .
(5) to discharge or otherwise discipline an individual for good cause.
These affirmative defenses have been narrowly construed and require a strict showing of proof.
IN RE QUESTION NO. 3:
The county cannot enforce the provisions of the resolution passed on January 8, 1962, as they are violative of a federal law under which they are bound.
IN RE QUESTION NO. 4:
If the county wishes to enact and implement an age-based retirement policy the Day County Commissioners should convene and repeal the resolution of 1962. The Commission must, at a minimum, comply with all of the provisions of the Age Discrimination in Employment Act, 29 U.S.C. § 621-634.
Respectfully submitted,
Mark V. Meierhenry
Attorney General
