NOTICE N-915.059

August 29, 1990

1. SUBJECT: Policy Guidance: Circumstances under which the award of prejudgment interest is appropriate.

2. PURPOSE: This Policy Guidance provides information on the circumstances under which prejudgment interest and liquidated damages may be awarded concurrently.

3. EFFECTIVE DATE: Upon Receipt.

4. EXPIRATION DATE: As an exception to EEOC Order 205.001, Appendix B, Attachment 4, sec. a(5), this Notice will remain in effect until rescinded or superseded.

5. ORIGINATOR: ADEA Division, Office of Legal Counsel.

6. INSTRUCTIONS: File after the last Policy Guidance in the 800 series of Volume II of the Compliance Manual.

7. SUBJECT MATTER:

(a) Statutory Provisions ?

Section 7(b) of the Age Discrimination in Employment Act of 1967, as amended (ADEA), 29 U.S.C. sec. 626(b), provides the remedies available to enforce the ADEA. Section 7(b) adopts by reference many of the enforcement provisions of the Fair Labor Standards Act of 1938, as amended (FLSA), 29 U.S.C. 211 et seq., including (but not limited to) back pay, front pay, and liquidated damages. A major difference between the ADEA and the FLSA is that liquidated damages under the ADEA can be applied "only in cases of willful violations of this Act" while such damages are, according to the Supreme Court, mandatory under the FLSA.

(b) Discussion ?

In Hansard v. Pepsi?Cola Metropolitan Bottling Co., 865 F.2d 1461, 1470?71 (5th Cir. 1989), the Fifth Circuit, citing numerous cases from the Fifth and other circuits, stated:

Citation: Title VII, ADEA, 29 CFR Part 1601, 29 CFR Part 1625, 29 CFR Part 1614 — OLC Control Number: EEOC-CVG-1990-19