Forty is the magic number, not 50, when it comes to age and an employee’s rights. The protections offered by the federal Age Discrimination in Employment Act kick in as soon as you leave your thirties behind. The act doesn’t prohibit employers from favoring those who are older.
Where You Work Matters
Some employers fall outside the net of the rights protected by the ADEA. If you work in a small private office, your employer is exempt; the act only applies to those who have at least 20 employees. Labor organizations, such as unions, must have 25 members before they’re bound by the terms of the ADEA. The act applies to all employment agencies, however, and to all local, state and federal governments.
Rights Under the ADEA
The ADEA prohibits employers from advertising for younger workers. Asking for your birthdate in a job interview falls into a gray area and may be permissible, but an employer can’t base his hiring decision on your answer under most circumstances. He can’t bar you from training programs or from making use of any tools for advancement because of your age. In most cases, he can’t force you to retire and he certainly can’t fire you or force you to take a cut in pay because you’re getting up in years. Exceptions exist if you are physically incapable of performing your job because it requires some measure of agility, speed or strength that you no longer have. For example, if you’re well over 50, you may no longer be able to meet the physical requirements necessary to work as a firefighter. Your coworkers and boss can’t tease you mercilessly about your age, although some ribbing is allowed if it doesn’t rise to the level of creating a hostile work environment.
The Older Workers Benefit and Protection Act falls under the umbrella of the ADEA. Under its terms, you have a right to the same benefits a younger worker receives, but not necessarily increased benefits. For example, if your employer provides life insurance to all workers, it might cost him more to cover you past the age of 50 than it would to cover someone who just turned 25. He’s not required to spend more on your coverage than he would on the younger worker.
Early Retirement Offers
The OWPBA provisions of the act also cover the rules you and your employer must follow if he offers you an early retirement package. If you accept the offer, he’ll probably require you to sign a waiver, agreeing not to sue him for age discrimination. The waiver must clearly explain the agreement you’ve accepted. You have 21 days after receiving the waiver to think it over, and you then have another seven days after signing it to change your mind and revoke the agreement.
What You Can Do
Just because the law says that an employer can’t do something, it doesn’t necessarily follow that he’ll comply. If you feel you’re being discriminated against because of your age, you can contact the Equal Employment Opportunity Commission. You must file a charge with the EEOC first before you can file a private lawsuit. The EEOC will look into your complaint, and sometimes -- although not always -- it will take legal action against an offending employer. If the EEOC decides not to take action, you’ll receive a “right to sue” letter. You can file a private lawsuit from 60 days after you make a complaint to the EEOC until 90 days after you receive this letter. However, you don’t have to wait for the letter if 60 days have passed since you made your complaint.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.