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Be alert to employment law issues related to older employees

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in Discrimination and Harassment,Employment Law,HR Management,Human Resources,Office Communication,Workplace Communication

There are more people over age 55 in the American work force today than at any time in history—more than 24 million in fact. A quarter of them are older than 65. These figures represent a 45% increase from just a decade ago, according to consultants Challenger, Gray & Christmas.

The trend runs even stronger in Ohio, which has more residents over 65 than the national average. Currently, Ohio is tied with two other states for 17th, with 12.8% of its population over the age of 65. The national average is 12.1%.

The aging work force presents both opportunities and challenges to Ohio employers. Older workers bring many years of experience, strong work ethics and wisdom to the workplace.

Because many Americans are remaining healthier longer, they’re opting to work longer, either staying in current jobs or trying new careers. And they’re not just working in low-paying, low-skill jobs.

Government research shows that older employees are more loyal than younger ones. On average, older American workers (ages 55 to 64) have been with their current employers for 9.3 years, while younger employees (ages 25 to 34) have an average tenure of 2.9 years.

Legal protection for older workers

Employment laws give older workers unique protections that younger workers lack. Specifically, the federal Age Discrimination in Employment Act (ADEA) and Ohio’s Fair Employment Practices Act (OFEPA) prohibit discrimination because of age against workers 40 and older.

However, employers are getting a reprieve of sorts from a new EEOC regulation.

In response to a 2004 U. S. Supreme Court ruling, the EEOC now says that employers cannot be sued for policies that favor older workers, even if that favoritism is at the expense of other workers over age 40. The new guidance means employers can advertise positions using such terms as “perfect for retiree” or “mature person needed” without legal concerns. (See details in box below.)

How OFEPA applies to age discrimination

Employees who believe they have been discriminated against in violation of the OFEPA may file a complaint with the Ohio Civil Rights Commission. Within 100 days of receiving the charge, the commission will investigate the complaint and take one of three actions:

  1. Determine that it is not probable that discrimination occurred and that the commission will not pursue the complaint.
  2. Initiate a complaint and attempt to settle the matter through conciliation.
  3. Initiate a complaint and refer the matter to the state attorney general. The commission will recommend seeking a temporary or permanent injunction or temporary restraining order to halt the discriminatory behavior. It also will ask the attorney general to file a complaint in the Court of Common Pleas in the county where the discrimination allegedly took place.

This process means employees or former employees need not shell out money for an attorney. Additionally, employees may seek punitive damages. OFEPA caps punitive damages at $10,000 for the first offense, $25,000 for the second and $50,000 for the third and subsequent violations within a five-year period. Punitive damages are in addition to compensatory damages such as back pay, front pay and other economic damages. OFEPA provides no cap for compensatory damages.

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