Even If A De Facto Employee, Is A “Partner” A Bona Fide Executive Or High Policymaker?
If a partner is found to be a de facto employee, the ADEA inquiry into mandatory retirement may not end there. Neither the Clackamas nor Sidley decisions had occasion to consider that the ADEA exempts from its protection “compulsory retirement of any employee who has attained 65 years of age and who, for the 2- year period immediately before retirement, is employed in a bona fide executive or a high policymaking position,” as long as the executive or high policymaker is entitled to an immediate retirement benefit plan worth at least $44,000.33 Employers are afforded little wiggle room in asserting the bona fide executive/high policymaker exemption. The Code of Federal Regulations provides that this exemption “must be narrowly construed,” and places the burden on the employer to show “that every element has been clearly and unmistakably met.”34 This exemption applies “only to a very few top level employees who exercise substantial executive authority over a significant number of employe
