A recent article in The New York Times discussed the plight of older workers in today’s workforce. As companies strive to effectuate economies, the labor force is often one line item hit the hardest. In a union setting, layoffs are usually determined by seniority; i.e., the most recently hired are the first to be let go. In a non-union operation, however, the decision as to who will be laid off is generally determined by a number of factors, both objective and subjective. In an ideal world, such decisions would be based solely on job-related, nondiscriminatory criteria. Of course, occasionally the ideal world and reality tend to clash.
The federal Age Discrimination in Employment Act (“ADEA”) protects workers forty (40) years and older and is enforced by the Equal Employment Opportunity Commission (“EEOC”). State and local laws closely parallel the federal act and are administered by their own agencies. An employee finding herself or himself on the receiving end of walking papers, can file a charge with the EEOC and/or complaint with the state or local agency, if the employee feels that the layoff decision was based wholly or in part on the employee’s age. In 2016 alone, nearly 21,000 such age discrimination charges were filed with the EEOC. However, a very small percentage of those ever make it to court. Some are found to be without merit and many are settled voluntarily. To that end, employers paid out some $350 million in 2016 alone in settlements.
A Company or Firm contemplating a reduction in force would be well advised to consult competent employment counsel to evaluate possible exposure to discrimination claims. A well-considered strategy including development of appropriate selection of criteria, due diligence, statistical analysis, and a comprehensive communication strategy often can minimize inevitable disruption of the workplace and reduce the risk of costly claims and litigation. Should you be considering a layoff or simply have some questions related to possible age discrimination, please contact either Philip S. Mortensen or Scott G. Grubin.