The Age Discrimination Employment Act (ADEA) was enacted to protect any worker over the age of 40 from discrimination based upon their age. Under the ADEA, an employee may not be forced to retire when they meet a specific age. While certain exceptions to this rule exist, you should know your rights especially if you work in a corporate culture of forced retirement.
The ADEA allows employees over the age of 40 to retire voluntarily. The ADEA also clearly states that there is no mandatory age for retirement. Therefore, employers are never allowed to force an elderly employee to retire. They are, however, permitted to incentivize their older workers to retire through incentive retirement packages or other offers. It is important to determine if these offers are in some way forcing an employee to retire, or if it is genuinely and simply an incentivization measure. For example, an employee cannot be given the choice to voluntarily retire or receive a reduction in benefits or salary if they remain with the company.
A constructive discharge claim is one in which the employee was offered voluntary retirement, however, in effect, it was truly involuntary and the employer’s intentions were actually to purge the employee from the company based on their age. In these cases, an employee will have the burden of proving that the conditions and environment of the company were made so terrible that they had no choice but to leave. This may include making an employee move their working area to an uninhabitable location, reducing an employee’s hours or job duties, reducing an employee’s salary, reassigning the employee to a much younger or inexperienced supervisor, taking away any type of continued training, forcing an employee to relocate, refusing to provide leads to customers, refusing to provide reasonable accommodations for disability, medical, or family leave, or any other way of inhibiting the ability of an employee from performing their job adequately. Essentially, in these situations, a company is intentionally sabotaging the employee’s performance and work environment, thus forcing them out of the company involuntarily. However, before voluntarily leaving any employment it is good to place the employer on notice in writing of the discriminatory work conditions and giving the employer an opportunity to take appropriate corrective action. It is also a good idea to consult a lawyer. You should make sure all written communications are polite, direct and professional.
Early Retirement Offers
If a company offers a genuine early retirement option to an employee, they must provide the employee with a reasonable time to consider the offer. Such a monumental decision deserves an opportunity to weigh both the pros and cons that will affect the employee. If an employer offers early retirement and then immediately demands an answer on the spot, it may be considered an involuntary termination, and essentially an act of discrimination against the employee.
You have the absolute right as an employee to waive your ADEA rights as a condition of accepting an early retirement offer. As long as the retirement offer is completely voluntary and meets the ADEA legal requirements for the waiver, it will be considered legal. You should always visit with an experienced attorney to ensure that you are not waiving any rights you do not want to waive with respect to your early retirement offer.
Examples of Discrimination and Forced Retirement
Some of the most common examples of discrimination and forced retirement include the following:
Layoff: Employers may design a layoff in order to force older employees out of the company. However, legally, an employer must create a list of both included and excluded employees that are part of the layoff. If your employer hires another employee that is much younger, with less experience to take your place after you have been laid off, you may have a strong case for discrimination.
Performance Reviews: If your employer starts giving you unfavorable performance reviews, despite your excellent work and continued success, you may be at risk for forced retirement. These small reprimands or warnings can create a trail of documentation that your employer may then use to force you out of the company. Make sure to require your employer to provide concrete and solid evidence regarding why your performance reviews have dropped, or require an employer to explain why other employees are receiving better reviews than you while doing the same or similar work.
Job Elimination: One tactic used by some employers to force someone to retire is to eliminate the job completely, and then change the title and duties of the job to some degree. If the “new” job is then filled by someone younger, or less qualified, you may have a case for discrimination based upon your age.
Pension Threats: A company may threaten an older employee’s pension and make the claim that if the employee does not retire it will somehow negatively affect their pension. This type of threat is not as common; however, it is used by companies at times to force elderly employees into retirement. Pensions are protected by the Employee Retirement Income Security Act (ERISA), and federal guidelines have established that group pension plans are secure. If you find that your employer is threatening your pension, you should contact the U.S. Department of Labor, Employee Benefits Security Administration and an experienced employment attorney.
You have the right to work and not be forced out of your employment due to your age. Age discrimination is real, and while some employers may want to encourage a younger workforce, they are simply not allowed to force retirement upon their older employees through threats or intimidation. Employers can incentivize their employees to retire, or provide transitional arrangements towards retirement for their employees, but only if the employees are willing to cooperate in those plans.
If you were forced to retire, or feel that you were discriminated against due to your age, contact our legal team at V. James DeSimone Law. We can help you understand your legal rights, determine if you were forced into retirement due to harassment or age discrimination, help you file a complaint, and build a strong case on your behalf, if necessary. Contact us at 310-693-5561 as soon as possible for a free consultation, if your case qualifies after you speak with a member of our intake team and/or fill out our intake form.
Attorney V. James DeSimone is a 35+ year experienced civil rights & employment lawyer in Southern California. Jim is a Super Lawyer, Rated “Superb” by Avvo, and is a US News & World Report Best Law Firm in California.
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