Age Discrimination–Solutions
Or maybe some thoughts about solutions.
—Before firing an employee in the protected age group (particularly someone in his/her 50’s and 60’s) who has been with you a long time, you must get legal advice.
—Watch out for a hiring pool that includes no one in the protected age group.
—Watch out for a succession planning candidate pool that includes no one in his/her 60’s; it’s talent, not youth, you’re looking for.
—With respect to any employment decision, make sure you’re focused on job qualifications, instead of age or perceptions about age.
—When you’re replacing an older employee, try to consider (even if you don’t choose him/her as the replacement) someone who is somewhat close to the age of the outgoing employee.
—Avoid language that can be viewed as age-related.
—Step back and take stock of the overall makeup of your workforce with respect to age.
—When doing a RIF, pay close attention to the ages of employees losing their jobs (in other words, are they all over 40 or are they in a variety of age groups), and make sure a lawyer is helping you evaluate the RIF process and outcome.
—If you enter into a separation agreement with an employee in the protected age group, make sure that it contains the magic language required by the Older Workers Benefit Protection Act (OWBPA), which, among other things, says the employee has 21 days to review the agreement and seven days to revoke it after signing it.
—If you enter into separation agreements with more than one employee in connection with a RIF or an early exit incentive program (and remember, it only takes two employees) at the same time or around the same time, make sure you comply with additional requirments of the OWBPA (like more time to review–45 days; written notice of any class or group of employees covered by the program, eligibility factors for the program, and applicable time limits; written notice of the job titles and ages of all employees eligible for the program and the ages of all employees in the same job classification who aren’t eligible; and more).
—With age comes disabilities and serious health conditions, so make sure you keep the ADA and FMLA in mind and apply them consistently when you’re dealing with an employee in the protected age group.
—Provide training to your supervisors and managers about the pitfalls of age discrimination.
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About Chris Parker
Chris Parker's practice focuses on the representation and counseling of companies in matters pertaining to the workplace and the protection of their intellectual property and trade secrets. In addition to serving as an advocate for clients, Mr. Parker is also trained as a mediator and frequently serves as a third-party neutral.
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About Jimmy Daniel
Jimmy Daniel provides counseling to businesses of all sizes related to the employment relationship. He assists in the drafting of employment agreements, policies, and handbooks, as well as provides guidance related to compliance with federal, state, and local legislation such as the Fair Labor Standards Act and the Family and Medical Leave Act.
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About Larry Bridgesmith
While serving in an Of Counsel relationship with the firm, Mr. Bridgesmith also serves as the Executive Director at the Institute for Conflict Resolution at Lipscomb University and as an officer and principal in Strategic Resolutions Group, LLC. In these roles, Mr. Bridgesmith brings over 30 years of legal experience in dispute resolution and innovative workplace strategies to clients, students and business entities alike.
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Dustin
powrstrk99@aol.com | 205.188.116.77
This is what I have gathered from what I have just read “Before firing an employee in the protected age group”….”Watch out for..” Sounds like a “How to Guide” for firing someone based on age without getting sued over it. Nice, real ethical Mr. Phillips.
From Age Discrimination–Solutions, 2010/02/22 at 12:04 AM
John Phillips
JPhillips@millermartin.com | 71.226.180.212
Dustin,
Do I detect a note of sarcasm in your comment?
My post wasn’t intended to tell anyone how to discriminate against someone in a protected class without getting sued. Discrimination is unlawful.
The fact is, however, that it is necessary to fire an employee in a protected class sometimes. That fact alone makes it possible that you will get sued. It’s prudent, therefore, for employers to be cautious in this kind of situation so that the real non-discriminatory reason for the discharge can be shown in the event that a suit is filed.
Thanks for your comment.
John
From Age Discrimination–Solutions, 2010/02/22 at 6:25 AM
Dustin
powrstrk99@aol.com | 64.12.116.77
Thank you for your response.Do you feel that that people abuse their rights under the ADEA, assuming they qualify, when they are in threat of or have been terminated? What laws protect the employer from false claims. Thank you
From Age Discrimination–Solutions, 2010/02/22 at 4:42 PM
John Phillips
JPhillips@millermartin.com | 71.226.180.212
One would be hard pressed to find any law that’s not abused sometimes. Employers have little protection from unfounded discrimination lawsuits. If an employee or former employee is in a protected class and is fired, that employee or former employee can always say the real reason was race, color, gender, national origin, religion, age, disability, or whatever.
If a lawsuit is found to be frivolous, an employer can recover costs and attorneys fees, but the standard for showing a lawsuit is frivolous in the discrimination context makes it virtually impossible for an employer to prove it. An employer needs to do the right thing and be able to prove that. If an employer has good documentation, etc., it’s harder for an employee to find an experienced lawyer to take the case. The law and its implementation are imperfect. A professor of mine used to like to say that the law, despite what people think, isn’t designed to insure justice. It’s designed to resolve disputes. Thanks for your questions.
From Age Discrimination–Solutions, 2010/02/22 at 7:20 PM