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Special Considerations in Employment Law: Employees Over 40

Employees have a myriad of rights that are illustrated by various local, state, and federal laws that provide them with certain guarantees in the workforce. One such law, the Age Discrimination in Employment Act (ADEA), is designed to specifically protect workers who are over the age of 40. What this law means for employers is that they must use caution when exercising their rights to terminate non-performing employees. As members of the baby boomer generation continue to work well into their 60s and 70s, employers must ensure that new policies that affect them are not discriminatory. This statement applies to policies that are implemented company-wide as well, as the law protects employees who are disparately impacted by a facially neutral policy.


In order to bring a claim of discrimination with the EEOC or state agency, an employee must be able to show four points:

  • They are 40 years of age or older
  • Their employer took an adverse action against them
  • They are qualified for the position
  • They were replaced or treated differently than a younger worker

Notice that none of those items listed mentions that the employee was performing at or above a certain level. Performance typically does not become a factor until an employer raises it as a defense to an action that was taken against the employee. Employers should also take note that the ADEA also applies to actions that are not intended to be adverse, such as sweeping policy changes that affect the entire workforce of the company. All too often company leaders find themselves in the cross-hairs of a discrimination lawsuit because they implemented a new rule meant to make the company more competitive, but it actually served to push older employees into retirement to make way for a more “dynamic” workforce.

Age discrimination takes many forms and is often mistaken for innocuous conversation, such as a senior manager asking whether an employee is “tired of working,” “looking forward to retirement,” or “slowing down.”  The law’s protections even permeate into other areas of employment law, such as workers compensation.  In order to ensure that an older employee is not being taken advantage of in settlement discussions, the law requires that employers provide a seven day “revocation period” before the settlement will be effective. This waiting period cannot be waived and is designed to ensure the settlement is not in violation of anti-discrimination laws.


The federal law protects employees over the age of 40 from discrimination by companies that have over 20 employees. This does not mean, however, that companies with fewer than 20 employees have a free pass to discriminate based on age. California, like all other states, has its own state law prohibiting age discrimination in employment and specifically covers smaller employers that do not fall within the federal law’s coverage.

Need Assistance?

If your company is considering making sweeping changes that affect your entire workforce, or you wish to terminate a non-performing employee, call the law office of Garcia & Gurney today to discuss any potential discriminatory impact such decisions may have.

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