We all get older, including our own family members, friends, and co-workers. This immutable characteristic makes ageism an unavoidable attribute of the workplace. It is also an unavoidable circumstance that both judges and juries are more open to understanding, regardless of their individual backgrounds.

In an effort to address this important issue, we have provided below, in a question and answer format, a summary of the basic information every employee and employer needs to know about age discrimination.

Q. What basic protection does the federal Age Discrimination in Employment Act (ADEA) provide for covered workers?

The ADEA prohibits employers from discriminating on the basis of age at any stage of the employment process, including application, interview, hiring, promotion, reduction, and firing.

The law applies to advertisements and selections of available positions, but allows reference to age limitations based on bona fide occupational qualifications tied to business necessity.

The ADEA prohibits employers from forcing employees to retire early, but it does not prevent legitimate incentives from being offered to induce retirement.

The law also protects employees from discrimination based on filing a complaint, giving testimony, and/or participating in efforts to seek redress for age discrimination.

Q. Our employer just announced plans to reduce the workforce by 50% and the list of employees subject to layoff seems to highlight many older workers who also have higher wages. Is there any legal protection for employees on this list?

Yes and No. The Age Discrimination in Employment Act (ADEA) protects workers age 40 and older from discrimination in any employment decision because of their age. While an employer cannot force an employee to retire involuntarily, an adversely affected employee must show that age, rather than a legitimate business reason, is the basis for the employment decision. Therefore, it is lawful for an employer to target higher-paid and potentially redundant employees, as long as the decision is not a cover-up of age discrimination. Recent case law emphasizes the need for the employer to present a legitimate business reason or purpose to justify any challenged employment policy or action.

The ADEA requires that there be a valid non-age business reason for all employment decisions. Examples of valid reasons include poor job performance by the employee or the need to achieve cost reductions to offset economic hardship experienced by the employer.

If the employer has announced a layoff or if a layoff is rumored at work, a concerned employee should try to gather as much information as possible by talking to other coworkers, including lower-level supervisors and/or union officials, to find out. exactly what is happening. happening. If the majority of the targeted workers are age 40 or older, and the majority of the retained workers are younger, there may be a basis for an ADEA lawsuit or lawsuit. This is especially likely if the employer has hired or subsequently hires younger workers to take the place of employees over the age of 40.

Q. Does the ADEA protect all workers from age discrimination?

No. There are limits to the scope and coverage of the ADEA. In particular, the federal law applies only to employees age 40 and older and to workplaces with 20 or more employees.

The ADEA applies to federal and private sector employees, but not to state employees. However, state or local laws may apply to these employees, as well as private sector employees excluded by federal law.

Q. Why does the ADEA exclude state employees from its protection, but cover their counterparts in the federal government and the private sector?

When Congress passed the ADEA in 1967, it was intended that the law would protect state employees as well as federal and private sector employees. For 33 years, this expression of Congressional intent prevailed, and state employees could sue their employers, that is, the states they worked for, for age discrimination, just like other workers.

In Kimel v. Florida Board of Regents (2000), the United States Supreme Court ruled that the ADEA does not protect state employees. The Court reasoned that Congress lacked the power to tell states how to handle age discrimination claims involving their own employees.

Q. If the ADEA does not provide protection, is the employer free to discriminate against an employee because of their age?

Not necessarily. The answer depends on the employee’s workplace and the size of the operations. Almost all states have passed their own laws prohibiting age discrimination in employment, and many municipalities have adopted even broader legislation. These laws often provide greater protection than federal law. For example, several states provide age discrimination protection to workers before they turn 40, and other states protect against actions by employers with 20 or fewer employees.

Q. Can an employer terminate an employee just before they are eligible to secure pension rights?

Historically, unscrupulous employers used this ploy to swindle workers out of pensions in order to save money. When Congress enacted the Older Workers’ Benefits Protection Act (OWBPA) as an amendment to the ADEA in 1990, this practice became illegal. The OWBPA prohibits an employer from:

Using an employee’s age as the basis for discrimination in benefits,

Target older workers along with staff reductions, and

Require employees age 40 and older to sign waivers or releases to obtain severance benefits if this legal document does not provide the rights and protections explicitly set forth in this law.

The Employment Retirement Income Security Act of 1974 (ERISA) also places limitations on the employer’s freedom to deprive employees of pensions.

Q. Does the law restrict employers from offering retirement incentives, such as a cash bonus or enhanced benefits package, to encourage retirement by closing the retirement gap?

It all depends on the nature of the incentive. The Older Worker Benefits Protection Act regulates the legal waivers that employers are increasingly asking employees to sign related to early retirement programs. If an employer offers an employee the opportunity to participate in a downsizing program, the law MAY give the employee some leverage in negotiating the terms of his or her departure.

The fact that the employer has offered an incentive suggests that the company may want the employee to leave and wants to avoid potential legal issues, including age and other types of discrimination claims. Although the company may present the severance package on a take it or leave it basis, an employee can still try to negotiate a better deal on their own or with the help of a qualified employment attorney.

Q. If an employer asks an employee to sign an agreement waiving their right to sue, how valid or enforceable is this agreement?

A growing number of employers are asking older workers to sign severance agreements and/or waive their right to sue. In return, the employer offers the employee an incentive to leave the job voluntarily, such as a significant amount of severance pay or an early retirement package. The Older Workers Benefits Protection Act places a number of restrictions on these exemptions:

The employer must make the resignation understandable to the affected workers who must review, understand and sign this legal document.

The waiver may not require the waiver or release of any right or claim that may later arise, or be legitimately discovered, after signing the document, or state that the release covers known and specifically identified rights.

The employer must offer the employee something of value (such as severance pay) on top of what it already owes the employee in exchange for their signature on the resignation.

The employer must inform the employee in writing that they have the right to consult an attorney before signing the waiver and, by law, they have the right to a 7-day period to revoke their consent to the agreement.

If the employer is offering the same severance or benefits package to a group or class of employees, it must inform the employee in writing of the following:

How the class of employees is defined;

The job titles and ages of all persons to whom the offer is made; Y

The ages of all employees in the same job classification or business unit who were not made the same offer.

The employee must have a fixed time to make a decision on whether or not to sign the resignation.

This same notice requirement applies to layoffs and other group terminations, even if no incentives are offered.

Q. How does an employee enforce legal rights that protect against age discrimination?

If an employee believes that age discrimination has occurred or may have occurred, they may file a complaint with the U.S. Equal Employment Opportunity Commission (EEOC), just like any other workplace discrimination claim. The employee should call 800-669-4000 to find the nearest EEOC office or check the EEOC website at http://www.eeoc.gov/. The EEOC website has helpful guidance on age discrimination and a variety of other issues that often affect older workers. The Department of Labor’s website (http://www.dol.gov/) also contains helpful information about the Family Medical Leave Act, as well as the pension protections that commonly come into play in these situations as well.

If the EEOC does not resolve the complaint to the satisfaction of the employee, the employee may decide to seek relief by filing a lawsuit. The law contains an expedited notice procedure if the employee wishes to file a claim expedited without an EEOC investigation.

If the employee works in a state or city that has a law that prohibits age discrimination, they may choose to file a complaint under state law, federal law (ADEA), or both. In almost all cases, the employee must file a complaint with a federal, state, or local agency and/or give formal notice of their age discrimination claim before filing the lawsuit.

Lawrence J. Sherman, Esq.

shermanlaborlaw.com

The information you obtain on this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

Copyright 2007 by Lawrence J. Sherman.