Am I Being Targeted For Layoff Due To My Age?

4 ways to prove age discrimination

Thinking of the next big ideaAn AOL Jobs reader asks:

I work for a large company in Ohio. There are 50 or so employees with my job title working at various locations in the area. The company has decided to eliminate all but 15 of those positions. I am 61 years old. The company first examined our work history, anyone with disciplinary actions were eliminated from the pool. We were informed some positions had been filled and yesterday "group interviews" were conducted. The union negotiated a severance package, one week pay for each year served, the company will continue to pay benefits for three months and they will not contest unemployment benefits. I have been informed by my department head they may offer a lesser paying position if I am not among those chosen. There are 3 people with my title at my store. Should I be permitted to choose between a lesser paying job and the severance package? After the severance package, unemployment, perhaps SSI disability, can I simply accept early retirement? What other options do I have?

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Older employees, along with the disabled and pregnant employees, are the most targeted employees in layoffs. There seems to be an assumption that the "old guys" will be retiring soon anyhow so it doesn't matter. It does. Targeting older employees is illegal.

How do you figure out whether you were selected due to your age? Here are some factors to consider:
  • Comments: If your boss makes comments about age, that's direct evidence of age discrimination. Referring to older employees as, "geezer," "old man," or "pops," may indicate age discrimination. It can be more subtle. Saying the company wants a "young image," asking questions about your energy level or saying you may not be able to keep up with the new changes can all be evidence of age discrimination.
  • Different treatment: If you are selected as one of the employees to be laid off but younger, less qualified employees are kept on, then that is also evidence of age discrimination. Let's say the position requires a certification. You have it but the younger employee is working to get it. You're more qualified. Seniority can also be a measure of your qualifications. If you've been in the position for 20 years with all good reviews and the younger employee has only held the job for a year, that's a good indication that age discrimination is occurring.
  • Different options: If you are told you have to take the severance, where younger employees are given the option of stepping down to a lower paying position, then that could also be age discrimination.
  • Disparate discipline: Since the company is looking at disciplinary history, if you are suddenly targeted for discipline for picky things that younger employees also do and aren't disciplined for, then that is another sign that you are being targeted due to age.

On the issue of stepping down versus taking the severance package, that's a decision you need to weigh carefully. If your retirement benefit (assuming you work for the rare company that still has one) is measured by your last year or several years' pay, then you may want to go for the severance. On the other hand, if you aren't vested or can't retire yet and only have a few years left, stepping down may be the best option. This might be a good time to meet with your accountant or a financial planner to discuss the best options for you.

If you think you're being targeted due to your age, talk to an employment lawyer in your state. Sometimes age discrimination can give you leverage to negotiate a better severance package.



If you need legal advice, it's best to talk to an employment lawyer in your state, but if you have general legal issues you want me to discuss publicly here, whether about discrimination, working conditions, employment contracts, medical leave, or other employment law issues, you can ask me at AOL Jobs.

Please note: Anything you write to me may be featured in one of my columns. I won't be able to respond individually to questions.

Donna Ballman

Donna Ballman

Contributor

Donna Ballman’s book, Stand Up For Yourself Without Getting Fired: Resolve Workplace Crises Before You Quit, Get Axed or Sue the Bastards, was the Winner of the Law Category of the 2012 USA Best Books Awards and is currently available for purchase. Donna is the award-winning author of The Writer’s Guide to the Courtroom: Let’s Quill All the Lawyers, a book geared toward informing novelists and screenwriters about the ins and outs of the civil justice system. She’s been representing executives, physicians and employees in Florida, including negotiating severance agreements and litigating discrimination, sexual harassment, noncompete agreements, and other employment law issues since 1986. Her blog on employee-side employment law issues, Screw You Guys, I’m Going Home, was named one of the 2011, 2012 and 2013 ABA Blawg 100 best legal blogs, Paralegal 411’s Top 25 Labor and Employment law Blogs of 2013 and the 2011 Lexis/Nexis Top 25 Labor and Employment Law Blogs.

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11 Comments

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Go Sox

Just retire and let the youngsters take over, they need jobs more than you do.

March 03 2014 at 5:49 PM Report abuse rate up rate down Reply
e.rolko

I am 58 yrs old and in good physical and mental health. I left my last job because of an abusive boss, It has now been 1 yr and my U.I. has run out, Every job I check into although having positions lean towards the younger and less experienced. I feel it is because of lower wages. I cannot accept a lower wage because of my mortgage ( 25,000.00 per yr) and bills. ( truck oil food insurance etc.) what to do?

March 03 2014 at 3:05 PM Report abuse rate up rate down Reply
Chris

At my last job I was definetly targeted for layoff because of my age. There were three of us who were over 50yrs old with over 20 years of experience each in this field and we were laid off. The one person they kept only had six months working in this field. I believe we were targeted because we were making more money because of our experience.

February 19 2014 at 7:17 PM Report abuse rate up rate down Reply
Thomas

Age discrimination is a bugger to prove and to defend. I worked for Marriot Hotels for 20 years and we had a case where one of our long time employees, who was 65, began to have disciplinary issues. He began arriving late, forgetting assignments and was even rude to his fellow co-workers and a couple of guests. We counseled him and gave him warnings to no avail. Then one of our HR managers suggested that we speak with him regarding his excellent work history and his current history because she thought that he might have early dementia or Alzheimer's. The employee lost is mind! He called her every name he could think of and stormed out of the office. He filed an EEOC complaint alleging harassment, intimidation and age discrimination. It took 2 years just for the case to wend its way through the Department of Labor. In the end, they sided with us, but the employee then hired a lawyer. After another 2 years, we finally went to court where we were able to prove that we had done nothing wrong. In the interim time however, we expended thousands of man hours and tens of thousands of dollars (even though Marriott has 2 floors of lawyers at their Silver Spring, MD headquarters) on attorney's fees just defending ourselves. We had to fight his him and his attorney to get him to submit to psychological and neurological which eventually proved our point. His family, who knew that his demeanor had changed, stymied us at every turn. Bottom line, this can be a no win subject for the employer and employee.

February 19 2014 at 12:29 PM Report abuse rate up rate down Reply
kappamanmsu

I am 58 yrs old and have been working for large company for 29 years in sales. I have had all good reviews but recently received a written warning on an issue, by a new younger manager. Upon requesting additional info for my warning, I was presented with a document with my signature, which had been copied and pasted from another document. I informed HR and was told that the manager recalled me signing the document on their computer, but they could not find an email trail for this document. I denied to HR that I signed my manager's computer and requested to speak with the next level of HR. I have not received any response for three months regarding this. I filed a EEOC claim in October and they told me that they are waiting for a response from the company. I don't know what to do at this point.

February 19 2014 at 12:15 PM Report abuse +1 rate up rate down Reply
1 reply to kappamanmsu's comment
cpottger

seek the counsel of an attorney in your state. Look for one that practices employment law with experience. You maybe able to get a free consultation regarding your case and please keep a diary from this day forward and in strict confidence. Don't tell none of your co-workers or " friends" . Sounds like they are trying to let this one fall between the cracks because you called them on it. Do not relent follow thru on your eeo case. Even if you just use a lawyer for a mediation or alternative dispute resolution. If they can't find the email trail and this goes forward you can ask them to produce the email records and if they don't have any you have 29 years of great work history. This is a possible scenario for what is going on . Big boss tells new upwardly mobile young manager we need to get rid of a few folks and then may single you out for whatever reason just to get you moving towards thinking about retiring. Illegal and it constitutes harassment and possibly age discrimination. This is not a joke this is going on throughout the USA. Keep that copy of your warning. Electronic discovery will prove expensive for your company and they may settle in mediation to avoid damage to their image. Pain and suffering also can be attached and you might be able to retire comfortably. God Bless You.

February 19 2014 at 6:34 PM Report abuse rate up rate down Reply
M

A former employer needed to reduce staff, possibly in preparation to being sold to another company, (which they were about 12 months laer), and they made the offer to every employee for the one week's pay for each year of service. I heard from a lot of people still working for that company how that offer *went sideways* on both the employees and the company...

The company expected the offer would be taken by the 2-5 year employees, but the 20+ year employees took up that offer instead. Those employees had the intention to take their payouts and start their own business with it. The company had not put any restrictions on the offer, except that all acceptances from employees must be submitted by a particular date. (They *should have* specified a maximum number of acceptances they would allow, first-come or subject to management approval. The company didn't.)

As it happened, more than half of the company's 20+ year employees accepted the offer.
This included a lot on higher management and project management positions. (*OOPS!*) The 20+ year employees made up a majority of the acceptances in spite of being about 10% of the employees.

Then the employee part went bad BECAUSE the company didn't have the cash to pay out in lump sums, as had been expected by the employees. (*YIKES!!*)
Warning: Get all terms and conditions in writing!

Unfortunately, the acceptances were all honored, and the payout was made on the schedule of regular payroll payments, so some very senior employees were still receiving their payouts as much as 6 MONTHS later!


Later, a company I was working for needed to close down a very large project, and used pretty much the same offer as described in the article. The bad part was how the company legitimately WANTED to keep those employees, and flew managers in from all over the USA to fill openings in their parts of the company, most in equivalent responsibility and pay positions!. The employees (type *A* personalities) took the position they should be offered higher pay, AND incentives like *signing bonuses*, similar to what they would get if they took the company's offer!

The managers WERE doing a service to the prospective layoffs, so they were insulted by the attitude, and ultimately hired none of those employees. (OUCH!!)
To make a long story short, those employees were unable to find jobs in the areea, and realized they messed up, long after the fact...

The part of the company I worked for was sold to *our* competitors in California, and that company said they would have a job there for any of us that self-relocated there, but got no takers. Their new location was 20 miles from the nearest city over 20,000 population, and that was the main decider in our group.
IF any of us got laid off there, there were NO equivalent jobs anywhere nearby.

February 19 2014 at 9:19 AM Report abuse rate up rate down Reply
1 reply to M's comment
Kay

someone should start to investigate Dow Chemical as they are forcing many older and high seniority workers out of the company for the past few years. They tell them that they have enough time to retire so they may as well do so, or drum up false charges that could get them fired or suspended so they should retire instead. If the worker gets fired, they lose their retirement, so many are taking the retirement. Even the Union is not helping the workers!

February 19 2014 at 11:05 AM Report abuse +1 rate up rate down Reply
1 reply to Kay's comment
cpottger

Solution pool resources and hire a experienced labor lawyer. Many offer free consultations. Get your notes organized to maximize the benefit of free consultation. If the union is not working for you and you are a dues paying member you can file a complaint with NLRB.

February 19 2014 at 6:40 PM Report abuse rate up rate down
carnut122

If the uncertified younger guy who who has worked for the employer about 5 years gets a promotion over the certified older guy who worked for the employer for 20+ years and doesn't even get interviewed, it might not be age discrimination, but cronyism. At least that's how it works where I'm at.

February 19 2014 at 9:07 AM Report abuse rate up rate down Reply
1 reply to carnut122's comment
cpottger

If you go in to a proceeding claiming age discrimination and point to cronyism as evidence you will lose your case. I know what you are saying same out here cronyism and gangsters.

February 19 2014 at 6:42 PM Report abuse rate up rate down Reply
Angry White Guy

You forgot one very important thing: keep a diary or journal about every interaction you have that can be used to prove what was stated to you--and when. Relying on memory will not help you if you decide to make an age discrimination claim when it comes time for depositions and interviews.

IF you end up filing in court, be aware that the wheels of justice grind exceedingly slow. An acquaintance of mine won an age discrimination suit...after TEN YEARS in the court system.

February 19 2014 at 8:21 AM Report abuse +2 rate up rate down Reply
1 reply to Angry White Guy's comment
EmployeeAtty

Yes, very important to keep records and make sure those records are at home, in your briefcase/purse or on your person, not in your desk or in your work computer. If you're fired, the company may well "lose" any records you leave behind and won't let you take them with you.

February 19 2014 at 2:59 PM Report abuse rate up rate down Reply

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