“How can I ask my older employees to retire?”

This is a question that a lot of employers find themselves asking as their workforce ages but shows no signs of retiring. As an employer, it is difficult to find a place for older workers, especially as technology changes and advances, competitive and diverse skill sets become more valuable, and many once-necessary positions become obsolete. Additionally, older employees tend to cost more, as they have climbed the ladder and accrued more benefits, longer vacation times, and higher salaries. For many employers, it would be less expensive and more beneficial in the long-term to hire and train newer, younger employees and to let go of the older ones.

However, as much as an employer may want to “trade out” an older employee for a younger, more skilled individual, doing so is highly illegal. Asking an older employee to retire is just as much so.

Age Discrimination in Employment Act

Thanks to the 1967 Age Discrimination in Employment Act, mandatory retirement is outlawed. Furthermore, workers over 40 years of age are protected by the ADEA from any sort of age discrimination, including but not limited to discrimination in regards to:

• Any term, condition, or privilege of employment;
• Hiring;
• Firing;
• Promotion;
• Layoff;
• Compensation;
• Benefits;
• Job assignments; and
• Training

In essence, the law makes it illegal to not hire, fire, promote, train, or treat an employee any differently because of their age. The law only applies to individuals 40 years and older though; if an employer chooses not to hire a person because they are “too young and inexperienced,” they have every right to follow through with that decision.

Policies to Help Your Business Avoid an Age Discrimination Suit

At Garcia & Gurney, ALC, our employment attorneys assist employers in the Pleasanton, Alameda, and Contra Costa areas comply with state and federal employment laws. Because age discrimination is a real and increasingly prevalent issue in today’s workforce, our legal experts encourage California businesses to implement a few policies that will help them avoid any possible problems regarding age discrimination.

Our employment lawyers encourage employers to enact policies regarding the following:

• Promotions and Raises: Many employers have a policy that rewards employee longevity with an increase in wage by a set amount for every year of employment (i.e. a $1 raise for every year up until $20 per hour pending an employee review). They do the same with vacation time and benefits as well (i.e. for every year of employment, the employee receives an additional week of paid vacation, up until a maximum of five weeks per year). While this is great incentive to keep employees on, it is not so helpful for encouraging productivity. Instead of following the standard employee reward system, enact a policy that rewards employees based on the value they provide to the company. Make ongoing training and education available to all employees so that each person, regardless of age, has the same opportunities to advance. Furthermore, develop an appraisal process that applies values to each employee’s performance, and make the accrued data part of the promotion and wage increase process.
• Date of Birth: A good policy to enact is to remove the “date-of-birth” category from all applications for employment altogether. This gives all candidates a fair chance at employment, regardless of age. Additionally, it eliminates any claims of “I did not get an interview because of my age” that may arise.
• Discipline: Be sure to enact the same level of discipline for every employment violation committed, and to hold every employee to the same standard of performance. Failure to do so could result in an age discrimination suit from the least expected individuals. For example, if both an older employee and a younger employee were to violate the same office procedures, but you only fired the younger employee for fear that the older employee would file an age discrimination suit against you, you may still be sued for age discrimination by the younger employee. Be fair when dispensing discipline, and you can help yourself avoid any age discrimination lawsuits.
• Workforce Reductions: Oftentimes, when an employer is forced to reduce their workforce, they will let go of the older individuals first, mostly because older employees tend to make more money than the younger ones. Firing an older employee just because you cannot afford them is still illegal though. To eliminate any potential lawsuits in the event of a possible workforce reduction, make it clear from the very beginning that your policy is to conduct layoffs on a seniority basis. Or, better yet, consider alternatives, such as reducing hours, or asking employees to volunteer for temporary part-time status.

Contact a Pleasanton Employment Lawyer Today 

At Garcia & Gurney, ALC, our employment attorneys help businesses in the Pleasanton area comply with federal and state regulations regarding discrimination. If you have an aging workforce and want to prepare for their future with your company, if you are a new company and wish to establish safeguard procedures, or even if you just want to protect yourself from discrimination lawsuits, contact our Pleasanton employment lawyers today at 925-468-0400 to schedule a consultation.