New Jersey Employment Attorneys Blog
Forced Retirement: Laws to Protect Workers
While many people plan to work until age 65 when they become eligible for Social Security, others would prefer to retire at age 62 when their Medicare eligibility kicks in. For some long-time workers, retirement can also happen without warning. Unexpected health problems, companies going out of business, or a layoff can force you into retiring earlier than you might have planned.
If an employee has planned to retire at 65, but then finds the quality of work atmosphere to be less than pleasant, their hours are repeatedly cut, or other (younger) employees are being given preferential treatment, it could be a case of age discrimination.
Guidelines
According to the Equal Employment Opportunity Commission (EEOC), forcing an employee into retirement at any point during their career is a form of employment discrimination. The EEOC is responsible for enforcing the federal equal employment opportunity laws. Once a case is filed, the EEOC attempts to resolve the dispute through voluntary compliance on the part of the employer. Employees do not have to wait until the EEOC brings action against an employer, and may pursue legal action even before a claim is filed. However, once the EEOC decides to take action, the employee’s right to sue expires.
Laws
Legally, employers cannot consider an employee’s age, gender, race, religion, actual or perceived disability, national origin or age as a factor in job selection, promotion or termination. The federal Age Discrimination in Employment Act (ADEA) of 1967 protects employees who are age 40 and older. The act applies to all U.S. employers with at least 20 employees. State laws vary across the country, and may provide additional protections to older workers. The Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA to specifically prohibit employers from denying benefits to older employees.
Performance
Employers are allowed to post job notices based on age if they can prove that their age limits are reasonably necessary for a specific job. Some professions – airline pilots, firefighters, and school teachers, to name a few – hold exception to the law. In general, these are careers that require specialized skills, physical strength, or mental ability, and age could become a factor in maintaining the mental acuity or dexterity necessary to perform the required tasks required by the position.
File a Complaint
In many cases, employees are known to accept early retirement packages simply because they worry about being made to retire under less than favorable conditions if they stay on to ride out their time on the job. Employees who are forced into early retirement by their employers can file a discrimination complaint with the EEOC, regardless of the way they left. Since their employers did not terminate their employment, but actually claimed the employee as “retiring”, the claimant must show that unfair treatment was the reason for retiring early. Basically the employee has to prove that the employer created an unpleasant experience for them in the workplace, and that he or she had no other option but to retire. Stress, physical health issues and psychological factors often play a part in older adults who face early retirement against their will.
It is unlawful to retaliate against an individual for opposing employment practices that discriminate based on age or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADEA.
References
The U.S. Equal Employment Opportunity Commission: Facts About Age Discrimination
The ABA Family Legal Guide: Age Discrimination