Lay-off of EE over 40?

Paula_AZ · February 2003

What laws/regulations should I be aware of if we need to lay-off one employee who happens to be over the age of 40?

I've searched the DOL and came up with nilch, but I seem to remember something about it from years ago. Any thoughts?

Thanks!

Parabeagle · February 2003

Employees over 40 are protected from age discrimination by the Age Discrimination in Employment Act. Make sure that age plays NO factor AT ALL (even on a wink-wink, nudge-nudge level) in the decision to lay off this employee. Ensure there are sound, nondiscriminatory business reasons for doing so.

Paula_AZ · February 2003

As an addition to the original post, I have found many websites that give sample Separation Agreements that all pretty much read the same, including allowing the dislocated employee 21 days to accept or reject the agreement, which has a severance amount attached to it, but have been unable to tell if the Separation Agreements are a matter or Company Policy or Actual Law.

Don D · February 2003

Such agreements are optional. If your company is thinking about using such an agreement, I recommend printing it out and having your attorney look it over. This will be cheaper than asking him to create one for your use. Expect him to mull over it and add a few corrections and make one or two additional suggestions, all in the interest of justifying his billable hours or course. I would not recommend your going with one of the agreement samples you pull off the internet or out of a magazine without first running it by the attorney. we often use these with sales professionals. But, to your original question, Parabeagle is correct. If you are absolutely certain that the ee's age has no bearing in the decision to lay him off, move forward. The caution is that he will perhaps claim that his age was the overriding factor and then the onus is on the company to show (prove) otherwise. But, don't exclude him from the reduction in force plan due to his age either.

Paula_AZ · February 2003

Thanks for your responses. I'm now wondering if there's some underlying regulation concerning the verbage in Separation Agreements - for example, the samples I've seen all refer to a 21 day period for the EE to sign, and a 7-day revoking period. Where might these standard time frames be coming from?

Don D · February 2003

The guvment.

Paula_AZ · February 2003

You wouldn't happen to know where I might find written documentation on these time frames, would you? I've been looking all morning and I'm not having much luck. Even the SHRM website let me down - not sure why I keeping renewing my membership.

Don D · February 2003

He is entering into this Agreement knowingly, voluntarily, and with full knowledge of its significance. Employee has not been coerced, threatened or intimidated into signing this Agreement;

* He has been advised to consult with an attorney or he is represented by an attorney;

* He has had a period of at least twenty-one (21) days to consider this Agreement;

* If he signs this Agreement prior to the end of the twenty-one (21) day period, he acknowledges that it is in his personal and voluntary decision to do so; and that he has a period of seven (7) days to revoke it.

The above is a partial quote straight out of the body of the last release we had drawn up by our attorney. That's as close as I can get to giving you documentation. Don

Theresa Gegen TX · February 2003

[font size="1" color="#FF0000"]LAST EDITED ON 02-11-03 AT 02:32PM (CST)[/font][p]There are different requirements depending on how many people are laid off under the Age Act. If more than one is going and given the package, the release needs to have more information.

All employment law attorneys have these forms on their computer that are updated and legally enforcable, so it should not cost much to get one.

Please don't try to do your own. It is rather technical.

You can look at the EEOC website ([url]www.eeoc.gov[/url]) and find the laws and regulations (age discrimination in employment act), but I caution any non-lawyer trying to apply them. Your agreement will probably not be enforcable, because the courts generally require near perfection in meeting the requirements.

Good Luck!

Don D · February 2003

>
>All employment law attorneys have these forms on their computer that
>are updated and legally enforcable, so it should not cost much to get
>one.
>
Theresa: Are you suggesting that an attorney who told me it took him 3 billable hours to come up with the letter might be deceiving me? x:-)

Paula_AZ · February 2003

Thanks to all of you who contributed to this post. We had a separation agreement from a few years back that had been drafted by an attorney at the time, but we were wondering if it was required by any Act to do so. We mainly have it to protect our proprietary information, etc. The company involved is a charitable organization with an employee base of mainly volunteers, with the exception of the director, whose payroll was being funded solely by the donations of one company. The charitable organization was in risk of losing its 501(c)3 status and had to reduce costs, the director's salary being first and foremost. Her age had nothing to do with the decision, but of course a consideration after-the-fact. Thanks again.

franfields · February 2003

Our attorney gave us a "45 days to review" release to use for RIF's and a "21 days to review" release for a case where we were coming to a mutual agreement to sever the working relationship.

Sunny · February 2003

Paula: I believe the documentation you are looking for is in the Older Worker Benefit Protection Act (OWBPA). If I remember correctly, that is where the requirements for separation agreements are spelled out. Or you could just use the suggestions from the response to your post - they have it covered.

System · February 2003

Here are a couple of free articles on this topic on HRhero.com:

EEOC publishes final rule on 'tendering back' ADEA waivers
[url]http://www.hrhero.com/national/adeawaivers.shtml[/url]

Severance Agreements and the Older Workers' Benefit Protection Act
[url]http://www.hrhero.com/q&a/owbpa.shtml[/url]

Christy Reeder
Website Managing Editor
[url]www.HRhero.com[/url]

Paula_AZ · February 2003

Perfect! You guys/gals are absolutely the best!

Parabeagle · February 2003

You say that NOW. Wait 'till you get our bill. x;-)

Lay-off of EE over 40?

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