What Are My Rights as an Older Employee Who Has Recently Been Laid Off From My Job?
We hear all too often from clients…
“I just got laid off, and my employer wants me to sign a severance agreement. They gave me a big chart with a list of people’s positions and ages on it. I’m confused, and I’m not sure what to do next.”
If you are an older worker (defined as age 40 or older), stop right there! You likely have a lot of questions in your head right now. We’re here to help you find some answers.
Why did my employer give me this chart?
You were likely terminated in what is called a Reduction in Force or RIF. Your employer gave you this chart with a list of people’s positions and ages attached to a severance agreement, because they are legally required to do so by the Older Workers Benefits Protection Act (“OWBPA”) – and if you were “RIF’d” as they say, and your employer didn’t provide you with this chart, it may have broken the law.
What’s so important about this chart?
It’s important because older workers (defined by federal law as age 40 or older) are a protected class in the workplace, meaning that your employer can’t discriminate against you on the basis of your age. This chart may be an important piece of information to determine if you have a potential claim of age discrimination.
How does this chart help me prove age discrimination?
One way of proving age discrimination is by demonstrating that a particular layoff “disparately impacted” older workers, meaning that older workers were statistically overrepresented in the layoff as compared to younger workers. Because it’s impossible to tell if a layoff disparately impacted older workers without knowing the ages of the workers who were impacted by the layoff and those who were not terminated, Congress passed the OWBPA in 1991, as an amendment to the Age Discrimination in Employment Act (“ADEA”). Among other things, the OWBPA requires employers to provide laid-off employees with a list of the ages and positions of the workers who were laid off, and the ages and positions of those who were not laid off. The chart allows employees and their attorneys to compare the two groups to determine whether older workers were disparately impacted by the layoff on the basis of their age. It also allows you to see the ages of persons otherwise similar to you who were not terminated.
How big of a gap in age is big enough to prove age discrimination?
If the gap between the ages of the employees who were laid off versus those who were not laid off is “statistically significant,” then this can be used as proof that age discrimination occurred.
So what does statistical significance mean in this context?
Imagine that the average age of the workforce before the layoff occurred was 45 years old. If the decisions about which employees were going to be laid off were made on an age-neutral basis (as they legally were required to be), statistically, the average age of the workers laid off should be close to 45 years old (the average age of the workforce overall). The further the average age of the employees actually laid off deviates from the average age of the work force overall, the less likely it is that the layoffs were truly done on an age-neutral basis. If the average age of the workers laid off is far enough above the average age of the workforce overall, the difference may be evidence of age discrimination.
The list can be used in other ways to support a claim of age discrimination. If you were a member of a smaller group within the RIF’d group, age differences between you and the people in the smaller group who were not terminated may be telling as well.
What should I do now?
Make sure you carefully look over this chart and severance agreement and consult with a lawyer before signing the severance agreement, as you may have a legal claim for age discrimination. If you sign the severance agreement, you may be giving up your right to later bring a lawsuit against your employer. The experienced attorneys at Halunen Law are here to help. Contact us today for a free consultation.
Employment Attorney Emma R. Denny is an experienced, tough employment attorney, who is relentless in her pursuit of justice for clients who have been wronged by their employer. She has successfully litigated cases in state and federal court and negotiated favorable resolutions for clients facing discrimination, whistleblower, harassment, FMLA, ERISA, disability and religious accommodation, wage, retaliation, contract agreements and a host of other disputes. Learn more about attorney Emma Denny.
On this National Whistleblower Day, Halunen Law recognizes the tremendous contribution that whistleblowers make to our everyday lives— protecting our health, safety, and taxes. These contributions have been happening since the earliest days of the United States. The Founding Father’s unanimously supported whistleblowers in both words and deeds, including providing government records and monetary assistance to prevent retaliation against whistleblowers. [1] It is a privilege for us to carry on with that support and work with whistleblowers as they make companies accountable for their wrongdoing. Every whistleblower we honor today makes a difference. Thank you.
The #MeToo movement has shined light on sexual harassment and sexual assault in the workplace and work-related events. However, there is still a value in increasing knowledge, training, and education when it comes to sexual harassment and sexual assault in the workplace.
When employment attorney Amanda Crain joined Halunen Law, she brought an astute understanding of client emotional trauma, conflict, and complex legal matters. Selected for the Minnesota Super Lawyers Rising Stars list consecutively since 2014, she is committed to do what’s right for employees facing wrongful termination, discrimination, harassment, or other illegal workplace practices. 
Halunen Law employment attorney Ross Stadheim has an excellent record of recovery for his clients. Out of the 119 cases he has had in his seven years with the firm, all but 4 have resulted in recovery—a 96% success rate. However, all cases are judged on the particulars of their individual facts and there is no guarantee of success. He is part of an elite group of 2.5% of Minnesota attorneys who are under the age of 40, or have practiced law less than 10 years, to be selected to the Super Lawyers list as a “Rising Star” for 2014 through 2018. 
During my career as an employment law attorney, I have had the unique privilege of representing many employees who have been sexually assaulted during the course of their employment by a co-worker or supervisor. It makes my heart heavy to know there are so many people out there who have gone through such an experience.
Halunen Law employment attorney Emma Denny is experienced, tough and relentless in her pursuit of justice for clients who have been wronged by their employer. She has successfully litigated cases in state and federal court and negotiated favorable resolutions for clients facing discrimination, whistleblower, harassment, FMLA, ERISA, disability and religious accommodation, wage, retaliation, contract agreements and a host of other disputes. 
A few years back, a news article reported that a meeting of corporate defense attorneys had called out whistleblowers as primarily “disgruntled employees.” This remark reflects a too-common perspective that whistleblowers are a nuisance rather than a contributor to the well-being of our businesses and our government.
A Partner at Halunen Law, Susan Coler represents whistleblowers across the United States in many different industries who challenge illegal corporate conduct, including fraud against the government. Susan is rated as AV®-Preeminent by the Martindale-Hubbell Peer Review and has consistently been named a “Super Lawyer” since 2008. 
A new case decided by the Minnesota Supreme Court provides additional support to employees with disabilities—it clarifies that employers cannot terminate disabled employees who request an accommodation without a “thorough communication” and “documented good faith efforts” to see if the accommodation would actually pose an undue hardship.
Halunen Law employment attorney Emma Denny has successfully litigated cases in state and federal court and negotiated favorable resolutions for clients facing discrimination, whistleblower, harassment, FMLA, ERISA, disability and religious accommodation, wage, retaliation, contract agreements and a host of other disputes. She is recognized by Super Lawyers as a Rising Star and as one of the Top Women Attorneys in Minnesota. 
What rights does an employee have when jury duty calls?
As an employment attorney at Halunen Law, Colin is passionate about his work, the opportunity to share his client’s story, and to right a wrong. He is proud to be part of Halunen Law’s tenacious group of attorneys who continually work to bring meaningful change to their clients’ lives and the law.
Clayton Halunen is the founder of Halunen Law,
Employee misclassification has become a huge problem in the United States. Employers who want to increase profits by not paying withholding and other taxes and escaping liability for workers’ compensation and unemployment claims will often claim that their workers are ‘independent contractors’ or ‘consultants’ (ICs), even though these people perform jobs that go to the heart of the employer’s business. As an example, it has become almost automatic for operators of trucking, courier, and delivery services to use only independent contractor drivers. Why? The answer is simple- they save hundreds, maybe millions, of dollars each year by stiffing workers of benefits like 401(k) matches, insurance coverage, overtime, etc. For many years now companies have largely gotten away with this intentional misclassification by requiring workers to sign agreements with arbitration clauses and class action waivers. When workers challenged misclassification they were required to do it individually, rather than as part of a larger group of workers, and had to submit their claim to an arbitrator rather than a judge (arbitrators often coming from the ranks of lawyers that defend corporations). As a result, it became almost impossible to succeed in these types of cases. However, the tide has finally turned.