A law that many of us are familiar with, The Age Discrimination in Employment Act of 1967.  “The Age Discrimination in Employment Act of 1967 (ADEA) protects workers age 40 and over by prohibiting discrimination against workers 40 and over in any employment or employment-related decision. The Act applies to most employers with 20 or more employees…One of the main provisions of the ADEA is that employers, with very few exceptions, can no longer force an employee to retire. Voluntary retirements are allowed; however, very specific conditions must be met in order to avoid violation of the Act…. Penalties for non-compliance: Employees may be awarded back pay, reinstatement, retroactive seniority, and attorney’s fees. Liquidated damages equal to the amount of back pay may be awarded if the violation is willful.” (SHRM Article) In the event we have layoffs or terminations, organizations need to ensure they check the following boxes with a severance package or any exit process in the organization with protected workers under the ADEA.

Older Worker’s Benefits Protection Act (OWBPA) Requirements:

  1. “be written in a manner calculated to be understood by the average worker;
  2. Specifically refer to rights or claims arising under the ADEA,
  3. Not include a waiver of rights or claims that may arise after the date of execution of the waiver;
  4. Be made in exchange for consideration beyond anything to which the individual already was entitled;
  5. Contain a written statement advising the individual to consult with an attorney prior to executing the agreement; and
  6. Provide the individual with at least 21 days within which to consider the agreement (or 45 days where the waiver is part of an exit incentive or other employment termination program offered to a group of employees) and with another seven days after the execution of the agreement to revoke the agreement.”[i]

The waiver agreement that meets these requirements is enforceable, only after the revoke period has expired.  The ADEA is enforced by the EEOC, with slight differences in regulations, then we see with Title VII.  Remember, this is a federal law, there are protections against age discrimination at the state and even local levels as well, be aware of the law and potential changes in legislation.

“It shall be unlawful for an employer-

(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age;

(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age; or

(3) to reduce the wage rate of any employee in order to comply with this chapter.

(b) It shall be unlawful for an employment agency to fail or refuse to refer for employment, or other­wise to discriminate against, any individual because of such individual’s age, or to classify or refer for employment any individual on the basis of such individual’s age.”[ii]

The Age Discrimination in Employment Act of 1967

New York State Information

State of Pennsylvania Information

Title VII & ADEA Comparisons (not an all-encompassing list):

Additional Expansions to New York’s Workplace Laws and Regulations:

“The new laws contain the following additional provisions that New York employers should note:

  • All employers will now be subject to the state’s anti-discrimination law, regardless of size.
  • Nonemployees, such as independent contractors, will also be entitled to anti-discrimination protections. The laws also protect domestic household workers from all forms of harassment.
  • Employees who win state-law discrimination, harassment or retaliation claims will be able to recover uncapped punitive damages and will automatically be awarded their attorney fees.
  • The limitations period to file sexual harassment claims with the New York State Division of Human Rights will increase to three years from one year.
  • Employers will be required to distribute additional notices and other materials to new and existing employees about sexual-harassment prevention (in English and the employee’s primary language), including a copy of any information presented at the employer’s annual sexual-harassment-prevention training sessions.

The laws also bar contractual clauses that require mandatory arbitration for harassment and discrimination claims. However, federal law will likely pre-empt this change.”[i]

[i] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/new-york-legislators-upend-the-workplace-legal-landscape.aspx

[i] Joel Wm. Friedman, Examples & Explanations: Employment Discrimination. Third Edition (Wolters Kluwer 2017).

[ii] https://www.eeoc.gov/laws/statutes/adea.cfm

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Published by Mathew W. Burr, MJ-LEL, MBA, MHRIR, GPHR, SHRM-SCP, SPHR, CPHR-INT, Chartered CIPD

Mathew W. Burr, MJ-LEL, MBA, MHRIR, GPHR, SHRM-SCP, SPHR, CPHR-INT, Chartered MCIPD Lean Six Sigma Black Belt ABOUT: Matthew Burr has over 18-years of experience working in the human resources field, starting his career as an Industrial Relations Intern at Kennedy Valve Manufacturing to most recently founding and managing a human resource consulting company; Burr Consulting, LLC, Talentscape, LLC and Co-Owner of Labor Love, a Labor, and Employment Law poster printing company. Prior to founding the consulting firm, the majority of his career was heavy industry manufacturing and healthcare. He specializes in compliance auditing, training labor and employment law, conflict resolution, performance management, labor, and employment relations. Matthew has a generalist background in HR and operations, while providing strategic HR and operational solutions to his clients, focusing on small and medium sized organizations. He works as an Adjunct at Alfred State University, Tompkins Cortland Community College, and Montgomery Community College. He successfully designed an HR Concentration in the business management major that aligned with both SHRM and HRCI certifications, providing opportunities for students to sit for both the SHRM-CP and aPHR certifications upon completion of the degree, concentration, and internship hours as an Assistant Professor of Management at Elmira College (Retired January 2022). Matthew is also the SHRM Certification Exam Instructor, with a current pass rate of 92% on the SHRM-SCP and 83% pass rate on the SHRM-CP and a combined 88% on both exams over a 7-year period of instructing the course (Elmira College, Collin College & The College of St. Rose). Matthew works as a trainer at Tompkins Cortland Community College, Corning Community College, Broome Community College, and HR Instructor for Certification Preparation for the Human Resource Certification Institute (HRCI). He also acts as an On-Call Mediator and Factfinder through the Public Employment Relations Board in New York State, working with public sector employers and labor unions. PUBLICATIONS: Matthew has over 70+ publications including, American Bar Association (ABA) Experience Magazine, Cornell HR Review, Business Insider, New York State Bar Association (NYSBA), PayScale, Society of Human Resource Management (SHRM), and Expert 360 (in Australia). In early 2017, he published his first book, “$74,000 in 24 Months: How I killed my student loans (and you can too!),” proceeded by his second book, which was published in January 2021, “Slay the Student Loan Dragon: Tips and Tricks on How to Conquer the Student Loan Game” and his most recent book, “Unbox Your HR Career” in July 2023. VOLUNTEER WORK: Matthew is currently the New York State Society of Human Resource Management (NYSSHRM) District-Director. EDUCATION & TRAINING: Additional Training & Development:  SHRM Workplace Coaching and Mentoring Recertification Program, 2020  SHRM Foundation Employing Abilities @Work Certificate, 2020  SHRM Foundation Veterans at Work Certificate Program, 2018  Delta County Chamber of Commerce: Delta Force Leadership Program, 2013 FEATURED IN & ON: Matthew was featured on CNN Money, Fast Company, Fits Small Business, Fox News, Magnify Money, Monster.com, My Twin Tiers, Namely, Student Loan Hero, Smart Sheet and CEO Blog Nation, Human Resource Certification Institute (HRCI), Society of Human Resource Management (SHRM). Burr Consulting, LLC Capabilities Statement General Information: Burr Consulting, LLC Owner: Matthew W. Burr Mission Statement: “Strategically Aligning HR as a Partner for the Success of Your Business” Contact Information: Burr Consulting, LLC What's New in HR Blog Talentscape, LLC Labor Love, LLC (Labor Posters) The HR Support Center The Upstate HR Podcast (607)227-4386 Matthew@Burrconsultingllc.com Facebook: Burr Consulting, LLC LinkedIn: Burr Consulting, LLC Twitter: @Burrconsulting Online Certification Verification: Credibly Dun & Bradstreet (D&B) Number: 080776443 NAICS Codes: 541612, 923130, 54161, 541611, 541613, 611430, 541618, 561312, 561311 SIC: 8742, 8748, 9441, 8748001, 8748026 Our Services HR MANAGEMENT New Hire Orientation; Temporary HR Support; Recruiting and Application Tracking; HR Compliance (ADA, FMLA); Employee Handbook; Policy and Procedure; HRIS; HR Audits; Job Profile Design and Revision; HR Key Performance Indicators; EEO Reporting and Classification; State Unemployment Insurance Services TRAINING & TRAINING DEVELOPMENT Organizational Development; Employee Relations; Workplace Violence; Harassment & Sexual Harassment; Union Awareness; Managerial EMPLOYEE & LABOR RELATIONS Employee Relations Training; Conflict Resolution; Mentoring; Workplace Investigations; Labor Contract Costing; Mediation & Arbitration Prep; Fact-Finding; Workplace Investigations; Coaching & Counseling; Performance Reviews; Contingency Plan Development; Contingency Plan Training; State of New York Public Employment Relations Board (PERB)PERB Mediation and Fact-Finding Panels (Albany, NY covering the Elmira, NY Area) HIRING & RECRUITMENT Applicant Tracking Systems; Metric Development; Interview Training; Workforce Planning; Recruitment; Interviews; Job Offers; New Hire Process POLICY & COMPENSATION Group Plans – Healthcare, Dental, Vision, Group Life, Short- and Long-Term Disability; Retirement – 401(k), Profit Sharing, Roth; Workers Compensation; Total Compensation Design and Strategy; Deferred Compensation Plans; Salary Surveys; Reward Systems; Online Payroll; Customized Payroll Processing; Employee Self Service; Customized Reporting HR COMPLIANCE MATERIALS Burr Consulting, LLC is excited to announce a new partnership with Labor Love LLC, expanding our services to include HR printed materials compliant with industry standards.

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