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The ADEA is waiting and watching for violations

Anybody as old as 40?

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 managers need to know about.

Turning 40 = turning old

The age issue is governed by the Age Discrimination in Employment Act, which protects employees 40 and 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 ADEA-covered.

Note too that there’s no exemption for people who are 40 or older at the time of hire. “That’s no free pass” for the office, she says. No matter when employment begins, the ADEA applies at 40.

And Rubin points out 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 get protection.

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 year or the preceding year.

And they don’t have to be full-time, Rubin says. If they are on the payroll at all, they get counted.

The doctors can be covered too

Age discrimination can also extend beyond people who are obviously employees.

Depending on their relationship with the practice, doctors who serve as independent contractors or are non-equity partners can be considered employees and therefore come under the law.

Even doctors who are full partners can have protection. One law firm, for example, saw discrimination charges when it demoted several of its partners because of age.

That’s an area to be aware of, Rubin says, because older partners in a practice are sometimes asked to move to a reduced work status.

If it’s because they are no longer generating enough revenue or meeting performance standards, that’s not discrimination. But if the practice bases the move on a doctor’s decreasing revenues when 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. It 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 or girl instead of man and woman can create issues.

Risk in interviews

Interviewing is another 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 staff, 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 office 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.”

And so there’s never any question of what’s said, set 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 mark on it. And if marks have to be made, be sure there’s no age reference. For example, circle the name of the school, 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 watch out for comments that can be construed to relate to age such as, “We felt you were over qualified 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, because the employer has to get age-identifying information such as driver’s license number, Social Security number, and school graduation dates.

To stay safe, 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.

  • 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 somebody is not learning the new technology; it’s another to say it’s due to that person’s age.
  • Giving older staff the less desirable assignments or work shifts without a justifiable business reason.
  • Requiring medical testing for employees 40 or older but not for younger employees
  • Joking that a staffer is senile or “doesn’t remember like she 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 time the longer-term employees get. An across-the board change where everybody sees the same percentage decreases is not discrimination, she says. But if the cut hits only those who have accrued the largest number of days – and those people are invariably older – it could be a violation.
  • Excluding the older staff from social activities. If the office sponsors an event and if it could help people advance in their careers, those who are excluded can claim discrimination.

Layoffs get touchy

Layoffs and terminations carry risk, too.

Don’t explain a layoff as “we are moving toward a more dynamic workforce” or “we are rejuvenating our workforce.”

Also, when refilling the positions, hire staff in the save age range as those laid off. And that doesn’t just mean 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 lay-off sign a severance agreement that releases the doctors from discrimination liability of any type. The minimum severance is usually one week’s pay for every year of service; some employers go as high as a month’s salary for every year.

But be aware that the severance agreement has to meet the requirements of  the Older Work’s Benefits Protection Act, which is amendment to the ADEA.

It says the agreement has to be written “in clear, plain, understandable language.” It has to 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.

It also has to say that the employee has 21 days to consider the agreement and another seven after signing to revoke it. And for layoffs involving more than one person, the consideration time is 45 days.

Rubin points out, that there’s no real age discrimination risk in two situations.

One 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 manager can show that the layoffs are being made to cut costs, Rubin points out “that’s not age discrimination.”

The second is terminations made when people’s skill sets become obsolete.

If the office has given the employee an opportunity to improve the skills, that’s not discrimination, because employees need to update their skills to keep up with job requirements.

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