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Unpublished Paper
A Crumbling Pyramid: How the Evolving Jurisprudence Defining “Employee” Under the ADEA Threatens the Basic Structure of the Modern Large Law Firm
ExpressO (2009)
  • Jessica Fink, California Western School of Law
Abstract

Under the Age Discrimination in Employment Act, as well as other federal antidiscrimination laws, only “employees” as defined by the statute are permitted to sue. In recent years, the U.S. Supreme Court and lower courts have provided guidance regarding when partners in large law firms might be deemed “employees” protected by these laws. What has emerged from the courts’ decisions in these cases is a test that places significant emphasis on the amount of power and control that a partner has within a firm: Partners deemed to lack a sufficient amount of power and control within their firms may be characterized as “employees” for purposes of these federal antidiscrimination laws. Such partners thus would be permitted to sue their firms under the ADEA, including if they were subject to a mandatory retirement policy – a common feature within many large firms.

Scholars and practitioners have expressed disparate views regarding whether the courts adopted the right test for determining a partner’s ability to sue his or her firm. This Article, however, bypasses the question of whether these courts “got it right” in crafting this test and instead focuses on an area that has received scant attention – the impact that the courts’ analysis might have on many aspects of large law firms, from firms’ hiring patterns, to their compensation schemes, to their established tracks for promotion. Existing assumptions regarding when associates should expect to make partner, the percentage of firm profits they might receive upon reaching this status, and the level of turnover among older partners all may be undermined by these court decisions.

Disciplines
Publication Date
August 27, 2009
Citation Information
Jessica Fink. "A Crumbling Pyramid: How the Evolving Jurisprudence Defining “Employee” Under the ADEA Threatens the Basic Structure of the Modern Large Law Firm" ExpressO (2009)
Available at: http://works.bepress.com/jessica_fink/2/