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:
- “be written in a manner calculated to be understood by the average worker;
- Specifically refer to rights or claims arising under the ADEA,
- Not include a waiver of rights or claims that may arise after the date of execution of the waiver;
- Be made in exchange for consideration beyond anything to which the individual already was entitled;
- Contain a written statement advising the individual to consult with an attorney prior to executing the agreement; and
- 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]
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] Joel Wm. Friedman, Examples & Explanations: Employment Discrimination. Third Edition (Wolters Kluwer 2017).