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March 31, 2009

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America's workforce is aging. And as workers stay on the job longer, they generally move up the compensation ladder, acquiring more benefits and higher salaries. They also become more expensive for employers to keep around. This has led to a problem for many older workers, who increasingly face lay-offs (quaintly known as company downsizing or "right" sizing) and difficulties finding new jobs. Laws now afford some protection to older workers who face discrimination in the workplace--and also help protect their pension rights when they leave.

My employer has just cut the workforce in half, singling out older workers who have higher salaries. Is there any legal protection for us?

Possibly. The federal Age Discrimination in Employment Act (ADEA) provides that workers over the age of 40 cannot be arbitrarily discriminated against because of age in any employment decision. Perhaps the single most important rule under the ADEA is that no worker can be forced to retire.

Under the ADEA, there has to be a valid reason--not related to age--for all employment decisions, especially lay-offs. Examples of valid reasons would be poor job performance by the employee or an employer's economic trouble. If lay-offs have been announced or are in the wind, talk with other affected workers. If most people who are laid off are 40 or older, and the majority of workers kept on are younger, you may have the basis for an ADEA complaint or lawsuit. This is especially likely if the employer has hired younger workers to take the places of workers over 40.

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Does the ADEA protect all workers from age discrimination?

Unfortunately not; there are limits on both the employees and the employers who are covered. The ADEA only applies to employees age 40 and older--and to workplaces with 20 or more employees. But unlike several other federal workplace laws, the ADEA covers employees of labor organizations and local, state and federal governments as well as those who work in the private sector.

In addition to workers employed by companies which have fewer than 20 employees, there are several other exceptions to the broad protection of the ADEA:

  • Executives or people "in high policy-making positions" can be forced to retire at age 65 if they would receive annual retirement pension benefits worth $44,000 or more.
  • There are special exceptions for police and fire personnel, tenured university faculty and certain federal employees having to do with law enforcement and air traffic control. If you are in one of these categories, check with your personnel office or benefits plan office for details.
  • The biggest exception to the federal age discrimination law is made when age is an essential part of a particular job--referred to by the legal jargon of a "bona fide occupational qualification" (BFOQ). For example, if an employer who sets age limits on a particular job can prove that the limit is necessary because a worker's ability to adequately perform the particular job does, in fact, diminish after the age limit is reached, it's okay to discriminate.

If I'm not protected by the ADEA is an employer free to discriminate against me because of my age?

That depends on where you live. Most states have laws against age discrimination in employment, and those laws often provide greater protection than the federal law. For example, several states provide age discrimination protection to workers before they reach age 40, and other states protect against the actions of employers with fewer than 20 employees. ~

If you work in a state with such a law, you can choose to file a complaint under either state law or the federal law (ADEA), or both.

I've noticed a pattern where I work: older workers tend to be laid off just before their pension rights lock in or vest. Is that legal?

Using various ploys like this one to cheat workers out of their promised pensions is a technique some employers use to save money. But it's not legal. When the Federal Older Workers Benefit Protection Act was passed in 1990, it became clearly illegal for employers:
  • to use an employee's age as the basis for discrimination in benefits, and
  • to target older workers for their staff cutting programs.

Does the law restrict my employer from offering a Golden Parachute--a benefits package that seems contrived to get me into early retirement?

Maybe. One provision of the Older Workers Benefit Protection Act regulates the legal waivers that employers are increasingly asking employees to sign in connection with so-called early retirement programs.

If your employer offers you the opportunity to participate in a staff reduction program, the Act indirectly puts you in a position to negotiate the terms of your departure. The fact that your employer has offered an incentive suggests that the company wants you gone and is worried that you might file a lawsuit for wrongful discharge. So, although the company may say that you have only two choices--accept or reject the offer--there is nothing preventing you from making a counteroffer.

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My employer has asked me to sign an agreement waiving my rights to sue. What does this really mean?

A growing number of employers ask older workers to sign waivers--also called releases or agreements not to sue. In return for signing the waivers, the employer offers the employee an incentive to leave the job voluntarily, such as a significant amount of severance pay. The Older Workers Benefit Protection Act places a number of restrictions on such waivers:
  • Your employer must make the waiver understandable to the people who are likely to use it.
  • The waiver may not cover any rights or claims that you discover are available after you sign it, and it must specify that it covers your rights under the ADEA.
  • Your employer must offer you something of value (such as severance pay) over and above what is already owed to you in exchange for your signature on the waiver.
  • Your employer must advise you, in writing, that you have the right to consult an attorney before you sign the waiver.
  • If the offer is being made to a group or class of employees, your employer must inform you in writing how the class of employees is defined; the job titles and ages of all the individuals to whom the offer is being made; and the ages of all the employees in the same job classification or unit of the company to whom the offer is not being made.
  • You must be given a fixed time in which to make a decision on whether or not to sign the waiver.

How can I enforce my rights under the laws that protect against age discrimination?

If you believe that an employer has discriminated against you because of your age, you can file a complaint with the federal Equal Employment Opportunity Commission (EEOC) just as you would against any other workplace discrimination. Call 800-669-4000 to find the EEOC office nearest you. If the EEOC does not resolve your complaint to your satisfaction, you may decide to pursue your complaint through a lawsuit.

~More Information About Age Discrimination on the Job Several organizations offer help and information on age discrimination in employment. Among the most helpful are:

American Association of Retired Persons
601 E Street, NW
Washington, DC 20049
800-424-3410
Fax: 202-434-2320
http://www.aarp.org

AARP is a nonprofit membership organization of older Americans open to anyone age 50 or older. It offers a wide range of publications on retirement planning, age discrimination and employment-related topics. Networking and direct services are available through local chapters.

Older Women's League
666 Eleventh Street, NW, Suite 700
Washington, DC 20001
202-783-6686
Fax: 202-638-2356

The Older Women's League provides advice on discrimination and other issues facing elderly men and women.

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Filed Under: Workplace Issues
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