4-A | WHO IS COVERED UNDER THE ADEA?¹⁰

1) The ADEA Applies to:

a) Private Sector Employees

Any employee or job applicant age 40 or older working for or applying to work for an employer that is engaged in interstate commerce and employs more than 20 workers.

b) Public Sector Employees Employed By:

(i) Federal government;

(ii) State and local governments and state agencies;

(iii) State colleges and public school districts;

(iv) Employment agencies; and

(v) Labor organizations.

c) U.S. citizens employed overseas by a U.S. corporation or a subsidiary

d) Recipients of federal funds, such as Head Start, recipients of block grants such as health entities, and low income energy assistance

e) Presidential appointees and employees of elected state and local officials

f) Federal government contractors and subcontractors: Executive Order 11141

2) The ADEA Does Not Apply to

a) An employee working for an employer who is a foreign person not controlled by a U.S. employer

b) Uniformed personnel in active or reserve armed forces

c) Independent contractors:

(1) Test for distinguishing independent contractor from employee

(a) “right to control test”

(b) “economic realities test”

d) Partners in a partnership

e) Indian tribes

3) Other:

a) Religious institutions are not given a blanket exemption under the ADEA. Courts apply the test set out in NLRB v. Catholic Bishop, 440 U.S. 490 (1979) on a case by case basis.

American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006

Footnotes

¹⁰ The OWBPA amended the ADEA.

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