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Legal Q & A

Matthew Weng
Matthew Weng
League Staff Attorney

Age Discrimination and
the Mayor's Veto

Q Is there any law by which a town can set an age limit for employees? The employee in question is 90 years old, is very hard of hearing, but refuses to use hearing aids. He is currently out on sick leave for a broken leg. Luckily, he did not break his leg at work, but he has fallen several times at work, without serious injury. He is home from rehab now, is getting around with a walker, and has expressed a desire to return to his job, which entails interacting with the public and general duties that require moving and lifting. Can you offer any advice?

A This is a difficult situation. The Age Discrimination in Employment Act prohibits discrimination in employment situations against someone over the age of 40 because of their age. This includes hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment. An employment policy or practice that applies to everyone, regardless of age, can be illegal if it has a negative impact on applicants or employees age 40 or older and is not based on a reasonable factor other than age. This prohibition encompasses and prohibits a mandatory retirement age in almost every circumstance. The only exceptions I know of where Courts have upheld a mandatory retirement age are in public safety positions, such as police and firefighters.

You would need to demonstrate that you fired a particular employee because they were unable to perform their job and not simply because they were old. In other words, you could not fire this particular employee SOLELY because he is 90, but you could fire a 90 year old who was no longer able to perform the minimum duties of the position. The reasons for firing must be bona fide reasons, and not merely a pretext to let someone go simply due to their age.

In most cases, employees understand when they are no longer able to perform their duties. You may want to consider discussing the employee’s retirement options with them. They may be more receptive to that option than you assume.





Q We have a borough form of government. As you know, that means we have six Council members elected at-large and a directly elected Mayor. The Mayor may only cast a vote in the event of a tie vote among the other Council members. Assuming an Ordinance passes our Council by majority vote, without the Mayor voting, what effect, if any, would it have if the Mayor were to refuse to sign the Ordinance? Would such refusal be akin to a veto? Would it have any other impact?

A The statute describing the powers of the mayor in the Borough form of government is found at N.J.S.A. 40A:60-5. It states, in relevant part:

“Every ordinance adopted by the council shall, within five days after its passage, Sundays excepted, be presented to the mayor by the borough clerk. The mayor shall, within ten days after receiving the ordinance, Sundays excepted, either approve the ordinance by affixing his signature thereto or return it to the council by delivering it to the clerk together with a statement setting forth his objections thereto or any item or part thereof. No ordinance or any item or part thereof shall take effect without the mayor’s approval, unless the mayor fails to return the ordinance to the council, as prescribed above, or unless the council, upon consideration of the ordinance following its return, shall, by a vote of two-thirds of all the members of council, resolve to override the veto.”

As you can see, the mayor has ten days to either sign or veto the ordinance. If he does not do either within those ten days, the ordinance is law.

This column is for informational purposes only, and is not intended as legal advice.

First published in New Jersey Municipalities,
Volume 88, Number 9, December 2011

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