What Are My Rights as an Older Employee Who Has Recently Been Laid Off From My Job?

September 18th, 2019

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.

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