Employees above the age of 40 are vulnerable to discrimination. Some employers still choose to discriminate against these employees based on their age during the application, on-boarding, and even in the termination process. Thus, it is only proper that employees over 40 years old are protected from any workplace-based discrimination.
In response to the unfairness experienced by these employees, the Age Discrimination in Employment Act (ADEA) is amended to protect them better. The Older Workers Benefit Protection Act, also called OWBPA, is the strengthened version of ADEA.
The OWBPA has three key intentions. First, it prohibits any employer from reducing an employee’s benefits based on the worker’s age. Second, the OWBPA forbids any company from intentionally terminating older employees in their staff reduction initiatives. Lastly, the law deems it illegal for employers to force older workers into signing age discrimination waivers.
Ensuring Proper Benefits
All employees, regardless of age, must receive proper benefits based on aspects such as performance and position in a company. Age must not be a determining factor in the incentives they receive. Thus, according to the OWBPA, companies must not consider employees’ age group in the distribution of benefits such as health insurance, pensions, life insurance, retirement benefits, and disability assistance.
However, there are various exceptions to the law. For instance, an employer can give reduced benefits to an older employee without facing charges if the employer can provide justifications regarding the lessened benefits. These justifications must illustrate that the elderly worker and the company’s interests are both treated fairly. The interests of the older worker must not be abused to consider the company’s affairs.
Employers can also avoid discrimination charges concerning some kinds of benefits if they give the same amount of benefits to younger and older workers. In some cases, employers can also provide reduced benefits to elderly employees, provided that these employees enjoy additional benefits from the government. Still, there are different rules for each type of incentive. But, employers must primarily give proper benefits to younger and older workers alike.
Waiver of Age Discrimination Claims
In some cases, employers ask their older workers to sign a waiver that gives up their right to sue the company concerning age discrimination. The OWBPA safeguards older workers from being coerced to sign a waiver. If elderly employees agree to sign the waiver, they are offered an incentive such as higher than the typical severance package.
This practice gained popularity during the early 1990s. Several huge businesses, to reduce their wage expenses, resort to terminating the contract of older workers. They chose to retain younger employees than older ones since younger employees’ salaries and incentives were lower than the former’s. However, this practice is wrongful since it perpetuates age discrimination in the workplace. Often, employees are forced to sign the waiver due to limited protection and options.
Fortunately, with the passing of OWBPA, older workers are given more protection against deceptive and unfair employers. There are specific guidelines that employers need to follow for the waiver to be considered valid.
First, the company must not employ coercion during the process. Second, the release of discrimination claims must be presented in the written form to ensure that older employees can re-evaluate the conditions of the waiver. Third, companies must use simple words for employees to quickly understand the release. They should avoid complex sentence constructions and jargon. Fourth, employers are required to provide accurate information. Employers should not deceive their older workers with exaggerated incentives to make the release more attractive.
It is also advisable for employees to review the ADEA guidelines regarding the proper release of claims. Aside from referring to ADEA, it is also crucial for employers to communicate with legal counsel to ensure the legality and fairness of the waiver. Lastly, employers must be given ample time to review the content of release claims. Companies must provide a 21-day limit for an older employee to decide regarding the release claims. Apart from this period, the worker should also be given seven days to overturn the decision. In cases of group termination, each employee should be given 45 days for their decision.
The OWBPA also allows employees to negotiate with the management. Negotiating for better claims is more effective if done by a group. The bargaining should be expressed in written form for proper documentation and record-keeping. Employees should also keep track of different documents related to the termination because these are crucial for possible lawsuits.
If you or someone you know suffered age discrimination in the workplace, it is advisable to communicate with an experienced employment law firm in California. You have the right to fair release claims and proper treatment from your employer. A highly-skilled employment lawyer will help in your possible suit.
Get in touch with Mesriani Law Group today!