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Billingsley v. BFM Liquor Management6/14/2002
ed to the employment of individuals who are at least forty years of age but less than seventy years of age." § 48-1003. The age discrimination act defines an "employer" governed by the act as "any person having in his or her employ twenty-five or more individuals." § 48-1002(2).
This court has previously stated that when applying the provisions of the Nebraska age discrimination act, it will look to federal decisions interpreting the federal Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 to 634 (1994), for guidance in construing the Nebraska age discrimination act. See Humphrey v. Nebraska Public Power Dist., 243 Neb. 872, 503 N.W.2d 211 (1993) (stating that while federal protection is provided to all individuals who are at least 40 years of age, this court, as general rule, in other respects conforms its reading of Nebraska's age discrimination act to reading of ADEA). An employer is defined under the ADEA as "a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding year." 29 U.S.C. § 630(b).
Under the ADEA, the federal courts have recognized that "in the context of separate corporate entities, a court may calculate the number of employees by reference to the parent's employment rolls if the two distinct entities 'collapse' into a single employer." Darden v. DaimlerChrysler North American Holding, 191 F. Supp. 2d 382 (S.D.N.Y. 2002). See, also, Annot., 137 A.L.R. Fed. 551, 567 (1997) (" courts may consider two ostensibly separate business entities to be a single 'employer' for ADEA purposes if the facts indicate that the two are an 'integrated enterprise'").
According to the Darden opinion, two distinct entities "'collapse'" into a single employer if the two businesses have "(1) interrelated operations, (2) centralized control of labor relations, (3) common management and (4) common ownership or financial control." 191 F. Supp. 2d at 395. We believe the approach recited in Darden is sensible under the Nebraska age discrimination act and adopt the four-part test outlined therein.
In the instant case, the record reflects that both BFM and BCI operated under the control of Alan Baer & Associates. The record further reflects that BFM and BCI shared employees and that they had an economic relationship with respect to these shared employees. Another Alan Baer & Associates business, Strategic Staff Management, would oversee various human resource issues for both businesses. BFM and BCI shared similar management personnel, including Dahlke. Indeed, during the trial, Dahlke testified that he was employed by Alan Baer & Associates and that during the course of his employment, the positions he held with BFM and BCI had "been the same, basically . . . I'm on the board of directors, and I'm probably a vice president or a treasurer or a secretary."
Based upon our review of the record in this case, we conclude that BFM and BCI shared interrelated operations, had centralized control of labor relations, shared a common management, and shared a common ownership or financial control, and therefore, they may be collapsed to make one employer. Accordingly, we conclude that the district court did not err in determining that BFM and BCI were a "common enterprise" and, therefore, were employers under the age discrimination act. Defendants were subject to the terms of the age discrimination act. We conclude there is no merit to this assignment of error.
(c) District Court Properly Denied Defendants' Motion for Directed Verdict
For their next assignment of error, defendants claim that the district court faile
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