Age Discrimination in Employment Act, Older Worker Benefit Protection Act

IBM Takes Novel Approach to Dodge Age Disclosures.

Citing “privacy” concerns, IBM has stopped disclosing Older Worker Benefit Protection Act (OWBPA) information identifying job titles and ages of those being separated and retained during recent layoffs, according to published reports by Bloomberg.

To get around the mandatory OWBPA disclosure requirements for the waiver of claims under the Age Discrimination in Employment Act (ADEA), which can reveal disproportionate impacts to older workers, IBM does not require the release of ADEA claims as part of its severance packages, but it does require that employees who accept the severance packages agree to try their age discrimination claims through binding arbitration, Bloomberg reports. No word of any legal challenges to this novel approach, but we expect that most employers would not like the idea of paying out severance, and then having to face arbitration claims – and added liability exposure – for age discrimination. Still, it may be an effective tactic to consider to shield information about the ages of affected employees in large reductions in force.

Michael Homans is a Labor & Employment attorney and founding partner of HomansPeck LLCFor more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

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ADEA, Age Discrimination in Employment Act, New Jersey Law Against Discrimination

The Octogenarian Doctor Will See You Now.

Clients occasionally call to ask whether the age discrimination laws stop applying at some age – 65, 70, 75 or 80. For example, is it safe to force a physician to retire when he reaches age 81?  What do you think?

The answer is not as simple as one might guess. First, the federal law, the Age Discrimination in Employment Act (ADEA), originally protected workers up to age 65 – allowing discrimination against those older. In 1978, Congress raised the age ceiling to 70, and in 1986 Congress eliminated the age ceiling altogether.

So the answer is no age limit, right? Well, not quite. The ADEA allows age requirements and limits in some occupations, such as firefighters, law enforcement officers, and certain federal jobs, and even includes a rarely used exception for “bona fide executives or high policy makers” who have attained age 65 and have an annual retirement benefit of at least $44,000.

And for businesses with fewer than 20 employees, state anti-discrimination laws often have loopholes for certain professions. In New Jersey, for example, the New Jersey Law Against Discrimination allows employers to refuse to hire or promote any person over age 70, and the state has age requirements for certain professions, including those in healthcare.

All that being said, it’s still not a good practice, generally, to terminate an employee simply because of his age. As for that 81-year-old doctor, well, that’s a real case. In Hurkin v. Woodward Res. Ctr., an Iowa state healthcare center learned this lesson the hard way last month when it had to pay Dr. Zane Hurkin $450,000 (following a jury verdict in his favor) after he proved he had been fired because of his age.

This age stuff is not just an interesting legal issue. Recent reports indicate that the number of people aged 65 and up still working has surged in the past 20 years from 12.1 percent to 16.1 percent, and that by 2019, workers 55 and older will comprise 25 percent of the workforce. We can all hope this workforce is like fine wine, getting better with age.

Michael Homans is a Labor & Employment attorney and founding partner of HomansPeck LLCFor more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

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