Mandatory retirement: Is it ever legal?

Guest post by Dave Clemens, The HR Café Blog

You’ve got some older employees in your workplace, and while they’ve provided excellent service over the years, you’re now wondering if they’re ever going to, you know, call it quits. You’d kind of like to hire some younger, more dynamic folks.

And you’re even more concerned because you know that the trend toward an older workplace is accelerating. A recent Gallup poll showed that 49% of Americans in the Baby Boom generation plan to retire at 66 or older.

Of course, you can’t give your older workers a hard time so as to pressure them into leaving. You know that’s against the law. But could you maybe suggest — or even require — that they retire at a given age, say, 65 or 70?

Limited scope

Nope. You can’t set any mandatory retirement age unless the people involved fall into one of five very limited categories:

1. Federal law enforcement officers and National Park rangers
2. Airline pilots and air traffic controllers
3. Judges, in certain states
4. Top corporate executives
5. Personnel for whom being under a certain age is a Bona Fide Occupational Qualification (BFOQ)

The first three categories are pretty clear.

As for the fourth, you can oblige someone to retire if they’re 65 or older, have been in a “bona fide executive” or “high policymaking” position for at least the past two years, and are entitled to an immediate retirement benefit of at least $44,000 a year. An executive is not a middle manager, but someone who “exercises substantial managerial authority over a significant number of employees and a large volume of business,” according to the EEOC. A high policymaker is someone who has limited line authority but still “plays a significant role in developing or implementing corporate policy.” The EEOC gives examples such as chief economist or chief research scientist.

The fifth, the BFOQ, hardly ever applies. To justify forcing people into retirement on this basis, you’d have to prove to a court’s satisfaction that the age limit you’ve set is necessary for the success of the business, and that all — not just some — employees who are older than that mandatory age are in fact no longer able to do the job. That’s a tall order, and we wouldn’t recommend trying to fill it.

How to handle it

So if you’re concerned that an increasing number of older workers is going to cut into your organization’s productivity, what can you legally do?

Simple. Document people’s performance, and hold the 65-year-olds to the same standard as the 25-year-olds.

If an older person really is slowing down and losing productivity, you’re not obliged to coddle them — as long as your personnel decision is exactly the same one you’d have made with a younger employee whose performance was deteriorating.

For more on the executive/policymaker exemption, see http://1.usa.gov/1k34wZB

Dave Clemens is a senior writer for Rapid Learning Institute and writes The HR Café Blog. His work has appeared in The Associated Press, World Press Review and in several human resources, employment law and business newsletters. You can connect with Dave via Twitter @TheHRCafe.