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Avoid age-bias risk when talking retirement

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in Discrimination and Harassment

Supervisors and HR walk a legal tightrope when discussing retirement plans with older workers. If it appears you’re pushing an employee out the door based on his age—or if you suddenly eliminate his position after discussing retirement—you’ll be setting yourself up for an age discrimination lawsuit. And with more employees delaying retirement, this is becoming a white-hot legal issue.

These tips help make sure well-intentioned conversations about retirement don’t trigger an age-bias lawsuit.

  • Never assume that someone wants to retire. Adopt an attitude that assumes employees want to keep working until they make it crystal clear to you that they don’t.
  • Provide retirement education to everyone. When you set up retirement education sessions, advertise them to all employees, not just the older ones. If you offer a defined-contribution retirement plan—such as a 401(k)—let the administrators handle all retirement education. Advice: Designate an experienced HR professional to field day-to-day retirement questions. Publicize his or her availability. You will be able to provide valuable information on a walk-in basis without having to do specific outreach to older workers. Make sure your in-house retirement expert has training on age-bias liability.
  • Finally, remember that timing is everything in most age bias lawsuits. Carefully weigh the liability issues  before taking any adverse action against an employee who may be approaching retirement age. When a firing or demotion, for example, occurs close in time to an employee’s discussion about retirement, you’ll be raising the legal antenna of your employee—and possibly a jury’s antenna, too.

None of this means you can’t hold older workers to legitimate performance standards. But if you do plan to discipline or terminate older workers due to performance problems, make sure you treat all other employees the same way for the same offenses.

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