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Age-related laws: Liability lurks at both ends of spectrum

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in Discrimination and Harassment,Employment Law,Firing,Hiring,Human Resources

Federal employment laws protect workers from cradle to grave, but in very different ways.

For young workers, the law prevents them from performing dangerous tasks or working too many hours during the week. After age 40, the Age Discrimination in Employment Act (ADEA) kicks in, protecting employees from bias in hiring, firing, benefits or promotions. The ADEA applies only to companies with 20 or more workers.

State laws, however, are often more restrictive. Many apply the age-bias laws to smaller companies. Some even set lower or no age limits on protection, opening the door for so-called youth-discrimination claims.

About 20 percent of all charges filed with the Equal Employment Opportunity Commission include age discrimination, but that has been declining in recent years.

The median age of U.S. workers is projected to exceed 40 by 2002, and a recent AARP study found that most baby boomers plan to continue working after 65.

Build age-bias defense

To win an ADEA claim, workers have to show they were in a protected age group, were qualified for the position in question and were discriminated against despite being qualified.

Replacing an older worker with someone who is also older than 40 can land you in legal trouble if the replacement is still substantially younger.

Employers can defend their actions in several ways, such as showing their decisions were based on:

  • Business necessity: a valid reason beyond age for the business decision, such as downsizing.
  • Just cause: the worker's incompetence or misconduct, for example. 
  • Bona fide occupational qualification: the person cannot perform the job because of his age, for instance. 

Be careful that the factors you are considering aren't masks for age. Higher salaries, overqualification and fewer years of remaining service, for example, may be too closely related to age.

One employer recently ran into legal trouble by offering inferior health coverage to Medicare-eligible retirees. Under ADEA, you must offer equal benefits to older and younger workers or incur the same costs. (Erie County Retirees Association, v. Erie County, No. 98-3877, 3rd Cir., 2000)

Never write employment ads seeking "young" applicants or "recent college graduates." Urge managers to avoid age-related comments or jokes, they alone may not sink you in court, but they certainly won't help you win a case. You don't want to be explaining a supervisor's comment about "cutting the old, dead wood" shortly before he fired an older worker. Denying or limiting training for protected employees also can show bias.

Include an ADEA waiver

When terminating a worker older than 40, get more than a standard agreement waiving his right to sue for discrimination or wrongful discharge. ADEA waiver agreements must comply with the Older Workers Benefit Protection Act, which sets standards for ensuring the waiver is "knowing and voluntary."

Make sure the waiver is clearly written, advises the worker of the right to consult an attorney before signing, and provides 21 days to consider the agreement and seven days to revoke it afterward. To make such waivers legally binding, give the worker something extra of value, such as additional severance pay.

When laying off a group of workers (i.e. more than one), you must comply with additional rules. You have to give them 45 days to consider the agreement. Also, provide a list of job titles and ages of all employees affected, plus the ages of workers in the same job or company unit who were not laid off.

Limit work for teens

The Fair Labor Standards Act (FLSA) limits when and where minors can work, and the rules get more stringent in the fall. Children younger than 14 may work only in a few specific jobs, such as performing, delivering newspapers and working in their parents' solely owned business.

Children ages 14 and 15 can work outside of school hours during certain hours, but not in manufacturing, mining and other hazardous positions. The law lets 16- and 17-year-olds work unlimited hours, but still restricts them from some hazardous jobs.

If you violate federal child labor laws, you can be fined up to $10,000 for each violation that leads to a serious injury or death of a child.

Find out more about state laws regarding child labor by visiting www.dol.gov/esa and clicking on "State Labor Laws."

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