KemLaw

A number of factors are driving up the number of older Americans still in the workforce – factors that include financial pressures and the sheer desire to remain active later in life.

Actually – the U.S. Department of Labor tracks statistics on this very group and has projected that by the year 2022 nearly 32% of those between 65 and 74 will still be working. In 2002, just 20% in this age bracket were still working. In 1980, the year when the smallest percentage of older Americans were still in the workforce, that figure was approximately 12%.

Well – we often get questions about the legal parameters governing the employment of older Americans. Here are some of the basics in brief taken directly from the U.S. Labor Code on the prohibition of age discrimination:

• Employer practices:

It shall be unlawful for an employer—

(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age;

(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age; or

(3) to reduce the wage rate of any employee in order to comply with this chapter.

• Printing or publication of notice or advertisement indicating preference, limitation, etc.(this is a different font)

It shall be unlawful for an employer, labor organization, or employment agency to print or publish, or cause to be printed or published, any notice or advertisement relating to employment by such an employer or membership in or any classification or referral for employment by such a labor organization, or relating to any classification or referral for employment by such an employment agency, indicating any preference, limitation, specification, or discrimination, based on age.

Are there any permissible age related limits for older employees?

Yes.

Here again we refer to the U.S. Labor Code:

It shall not be unlawful for an employer which is a State, a political subdivision of a State, an agency or instrumentality of a State or a political subdivision of a State, or an interstate agency to fail or refuse to hire or to discharge any individual because of such individual’s age if such action is taken with respect to the employment of an individual as a firefighter or as a law enforcement officer, the employer has complied with section 3(d)(2) of the Age Discrimination in Employment Amendments of 1996.

Additionally, “it shall not be unlawful for an employer, employment agency, or labor organization to take any action otherwise prohibited under subsections (a), (b), (c), or (e) of this section where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age, or where such practices involve an employee in a workplace in a foreign country, and compliance with such subsections would cause such employer, or a corporation controlled by such employer, to violate the laws of the country in which such workplace is located.”

Connecticut’s and the nation’s aging workforce represent opportunities and challenges for businesses of all sizes and complexities. If you have questions about these matters or any other issues relating to employment or labor law, the attorneys at Kainen, Escalera & McHale each have over 20 years of experience in all aspects of employment and labor law. Please contact us if we can help you.

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