Oklahoma Administrative Code › Title 335 - Oklahoma Human Rights Commission › Chapter 15 - Interpretive Guidelines on Employment Discrimination › Subchapter 11 - Interpretive Guidelines on Discrimination Because of Age › Section 335:15-11-8 - Involuntary retirement exemption from non- discrimination requirements

Current through Vol. 41, No. 20, July 1, 2024
It is not a discriminatory practice for an employer
to require the compulsory retirement of any person who has attained the age of sixty-five (65) and who, for the two-year period immediately before retirement, is employed in a bona fide executive or high policymaking position, if such person is entitled to an immediate nonforfeitable annual retirement benefit from a pension, profit-sharing, savings or deferred compensation plan, or any combination of such plans, of the employer, which equals, in the aggregate, at least Forty-four Thousand Dollars ($44,000.00).
[25 O.S. Section 1309(3) ].
(1)
Burden of proof.
Since this provision is an exemption from the non-discrimination requirements of the Act, the burden is on the one seeking to invoke the exemption to show that every element has been clearly and unmistakably met. Moreover, as with other exemptions from the Act, this exemption must be narrowly construed.
(2)
Forced retirement and change in position or status.
An employee within the exemption can lawfully be forced to retire on account of age at 65 or above. In addition, the employer is free to retain such employees, either in the same position or status or in a different position or status. For example, an employee who falls within the exemption may be offered a position of lesser status or a part-time position. An employee who accepts such a new status or position, however, may not be treated any less favorably, on account of age, than any similarly situated younger employee.
(3)
Qualification as "bona fide executive".
(A) In order for an employee to qualify as a "bona fide executive," the employer must initially show that the employee satisfies the definition of a bona fide executive set forth in Title 29, Code of Federal Regulations (C.F.R.), section 541.1 . Each of the requirements in paragraphs (a) through (e) of §541.1 must be satisfied, regardless of the level of the employee's salary or compensation.
(B) Even if an employee qualifies as an executive under the definition in §541.1 of the C.F.R., the exemption for Title 25 of the Oklahoma Statutes may not be claimed unless the employee also meets the further criteria specified in the Conference Committee Report in the form of examples (see H.R. Rept. No. 95-950, p. 9). The examples are intended to make clear that the exemption does not apply to middle-management employees, no matter how great their retirement income, but only to a very few top level employees who exercise substantial executive authority over a significant number of employees and a large volume of business. As stated in the Conference Report:
(i)
Typically the head of a significant and substantial local or regional operation of a corporation (or other business organizations), such as a major production facility or retail establishment, but not the head of a minor branch, warehouse or retail store, would be covered
by the terms "bona fide executive". Individuals at higher levels in the corporate organizational structure who possess comparable or greater levels of responsibility and authority as measured by established and recognized criteria would also be covered.
(ii)
The heads of major departments or divisions of corporations (or other business organizations) are usually located at corporate or regional headquarters. With respect to employees whose duties are associated with corporate headquarters operations, such as finance, marketing, legal, production and manufacturing (or in a corporation organized on a project line basis, the management of product lines), the definition would cover employees who head those divisions
.
(iii)
In a large organization, the immediate subordinates of the heads of these divisions sometimes also exercise executive authority, within the meaning of this exemption. The conferees intend the definition to cover such employees if they possess responsibility which is comparable to or greater than that possessed by the head of a significant and substantial local operation who meets the definition
. [H.R. 95-90, p.10].