Before drafting a termination agreement, lawyers and hiring managers often ask a common question: the age of the employee to be fired. If you don’t have human resources experience, you may wonder why it’s important to know the person’s age if they’re going to be fired anyway.
Employee protection for workers over the age of 40
Employees age 40 and older are covered by the Older Worker Benefits Protection Act, also known as OWBPA. This is part of the Age Discrimination in Employment Act, or ADEA, which prohibits employers from discriminating against older employees during the hiring, training, and, of course, even the firing process.
Employers are required to provide additional information whenever two or more employees age 40 or older are laid off at the same or similar timeframe. The strict rules commonly apply to firing employees, but they also apply to early retirement plans, severance pay and other voluntary resignation packages where employees typically sign a resignation.
General rules for firing employees over 40 years of age
The employer will be granted a waiver for age discrimination claims, only if the release is signed by the employee and they understand what it means. The worker to be fired must sign it voluntarily. Generally, the release must follow the following terms.
- must be in writing
- It must be written in a way that is understandable to the employee.
- It must be in a clear and simple language, free of any technical jargon.
- You must not misinform the employee.
- You must not exaggerate the benefits an employee receives after signing the release
- Must specifically refer to ADEA
- Must have specific written notice that an employee should consult an attorney before signing
- The worker should not be required to waive rights or other claims that may arise after signing the waiver.
Generally, employees who sign releases receive additional compensation in addition to what they are entitled to receive. The OWBPA requires employers to give employees sufficient time to consider signing the waiver or resignation.
Generally, an employee has 21 days to consider. Substantial changes to the termination agreement would generally trigger a new 21-day period, but both parties can mutually agree that the 21-day period will remain in effect despite the changes.
Terminate two or more employees who are over 40 years old
A class or group of employees who are about to be laid off have additional requirements before a resignation can be delivered to the employer. The consideration period for laying off employees by groups of two or more would be 45 days, instead of the original 21.
Resignation documents to terminate employees, typically two or more at a time, include the group of employees covered by the voluntary or involuntary departure package, eligibility factors, time limits, job titles, and ages of all eligible employees, and the ages of all employees in the same group who are not eligible. The information provided is intended to provide employees with a better decision when signing their communications.
Before laying off employees, it’s always best to check with your human resources and legal team to make sure every decision at the company is in accordance with the law.
© 2013 Incedo Group, LLC