The Age Discrimination in Employment Act (ADEA) is waiting and watching for a violation.
Age discrimination can creep in quietly and unexpectedly.
It can come even from some well-intentioned remark such as, “You’re overqualified for this job”—the term “overqualified” being taken as a euphemism for old.
Here Alix Rubin, an employment law attorney in West Caldwell, NJ, outlines the elements of age discrimination administrators need to know about.
Getting old at age 40
The age issue is governed by the Age Discrimination in Employment Act, which protects employees 40 years of age or older from any kind of adverse employment action based on age.
Many employers think protection doesn’t start until age 55, Rubin says. But the number is 40. Anybody 40 or older is covered by the ADEA.
Note, too, that there’s no exemption for people who are older than 40 at the time of hire. “That’s no free pass” for the office. No matter when employment begins, the ADEA applies at 40.
And note further that many states have age laws “more favorable to the employee” than the ADEA, and when that happens, state law trumps federal.
In New Jersey, for example, age discrimination applies when someone is viewed as too young; so people 18 years old or younger are protected.
All it takes is 20 employees
As to which offices are covered, the ADEA applies to employers with 20 or more employees. Those employees have to be on the payroll for at least 20 weeks during the current or preceding year.
And they don’t have to be full time, Rubin says. If they are on the payroll at all, consider them covered.
Partners can be covered, too
Age discrimination can extend beyond people who are obviously employees.
Depending on their relationship with the firm, independent contractors and non-equity partners may be considered employees and therefore come under the law.
Even partners can have protection.
One firm, for example, saw discrimination charges when it demoted several of its partners because of age.
That’s an area firms need to be aware of, Rubin says, because older partners are often asked to go on emeritus status. If it’s because they are no longer generating enough revenue or meeting performance standards, then it’s not discrimination. But if the firm bases the move on the partner’s decreasing revenues and everybody else’s revenues are down by the same percentage, watch out for the ADEA.
Risk in job advertisements
Age discrimination can occur at any point in the employment process.
The violation potential starts with the job advertisement, which can’t give any indication that age matters.
Don’t use phrases such as “looking for recent college grads,” or “up-and-coming people,” or “young people” or “aspiring 20-somethings,” Rubin says. “That’s clearly illegal.”
Even using boy and girl instead of man and woman can create issues.
Risk in interviews
Interviewing is also a vulnerable spot.
Nobody asks, “How old are your kids?” or “I went to school there too! What year did you graduate?”
But what if a candidate volunteers age-identifying information such as, “I know I’m older than most of your employees, but I need a job”?
Don’t pursue the remark and don’t make any notes about it. Stop the conversation right there by saying the firm doesn’t discriminate by age or any other protected category. Even say directly, “That will not be a factor in whether we hire you or not.”
To ensure that there’s never any question of what’s said, the office needs a standard response to give in that situation.
A similar risk occurs when the resume carries age-identifying information, such as a graduation date.
Safety there, Rubin says, is to keep the resume clean. Don’t write on the resume, but if you do, make sure there’s no reference to age. For example, circle the name of the school but not the graduation date.
Risky rejection letters
Turning somebody down can also open the door to a discrimination claim.
No one would say, “We’ve decided we need to hire someone younger.”
But many employers make subtle comments that can be construed as relating to age such as, “We felt you were overqualified for the position.” Being qualified usually entails long experience, so overqualified could be taken to mean too experienced, i.e., too old.
Risky background checks
Background checking poses its own problem and is something few administrators think about.
In checking, the employer has to get age-identifying information such as driver’s license number, Social Security number, and school graduation dates. And someone who is turned down could claim it was because of age.
But there’s a simple way to avoid that, Rubin says. Do the checking after making the offer. Say that the employment is conditional based on the successful completion of a background check.
And it doesn’t stop there
ADEA violation potential stays with the office throughout the course of employment. Rubin cites these elements to watch:
- Giving older employers less desirable assignments or shifts without a justifiable business reason for doing so.
- Requiring medical testing for employees 40 years of age or older but not for younger employees.
- Making remarks at performance evaluations such as, “Given your age, it’s understandable you’re having a difficult time with this new technology.”
It’s one thing to say someone isn’t learning the new technology. It’s another to say it’s because of their age.
- Joking that an employee is senile, “doesn’t remember things like he used to,” or “isn’t as quick on the uptake as he used to be.”
- Changing the vacation policy in a way that decreases the amount of time longer-term employees get. An across-the-board change that affects everybody equally is not discrimination, however if the cut hits only those who have accrued the largest number of days—and those people are invariably older—it could be.
- Excluding older employees from social activities. If the firm sponsors an event that could help people advance in their careers, those who are excluded could claim discrimination.
Layoffs get touchy
Layoffs and terminations also carry risks.
When explaining a layoff don’t say, “We are moving toward a more dynamic workforce” or “We are rejuvenating our workforce.”
Also, when refilling positions, hire people in the same age range as those laid off. And that doesn’t mean just somebody older than 40. If a terminated employee was 65 and the newcomer is 42, a claim isn’t impossible.
Keep the age difference within an eight-year range. And for absolute safety, make it five years. “Five years or less is not going to be an issue.” But 10 years can be problematic.
Yet another safety step is to have the over-40 layoffs sign a severance agreement that releases the firm from discrimination liability of any type. The minimum severance amount is usually one week’s pay for every year of service but some employers go as high as a month’s salary for every year.
But be aware that the severance agreement has to meet requirements outlined in the Older Worker’s Benefits Protection Act, which is an amendment to the ADEA.
Specifically, the agreement has to be written “in clear, plain, understandable language.” It has to refer to ADEA claims and explain that the release does not apply to claims that arise in the future. It has to advise the employee to consult an attorney before signing it. And it has to say that the employee has 21 days to consider the agreement and another seven days after signing to revoke it. In addition, for layoffs involving more than one person, the consideration time is 45 days.
Rubin adds, however, that there’s no real age-discrimination risk in two situations.
The first is layoffs that start with the highest paid employees.
Yes, it’s usually the long-term people who make the most money, and yes those people are usually older, but if the firm can show the layoffs are being made to cut costs then it’s “not age discrimination.”
The second is terminations made when people’s skill sets become obsolete.
If the firm has given the employee an opportunity to improve their skills, then it’s not discrimination because employees need to update their skills to keep up with job requirements.
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