Ask The Lawyer, SOMEONE HAS TO GO!
SOMEONE HAS TO GO – OK TO LAYOFF WORKER WHO RECEIVES SOCIAL SECURITY AND WON’T FEEL THE PAIN AS MUCH?!
QUESTION: Our sales were way down last year, so we have to lay off a couple of workers. It’s a really hard decision. One of our long-term employees started receiving social security retirement benefits a few years back – and seems to be doing really well. If we let him go, and keep someone who really needs the job, will we get into trouble?
ANSWER: Using an employee’s eligibility for social security as a basis for a layoff decision is discrimination. When you consider an employee’s receipt of social security, or eligibility for social security, as part of your layoff decision, you are discriminating against the worker on the basis of age. Your workers’ resources, if they stop working, should be irrelevant (and no more your business than how much their husbands, wives, or children earn). Under your reasoning, older workers who are eligible for social security – no matter how stellar their job performance – will be on the short-list for a layoff.
Under the Age Discrimination in Employment Act (ADEA), a law that applies to companies with at least 20 workers, employers may not discriminate against older workers in any aspect of employment, including hiring and job assignments, benefits, promotions, training, discipline, and termination. The ADEA applies to workers age 40 and older.
If there are fewer than 20 employees at the company, you may be liable under Michigan’s Elliott-Larsen Civil Rights Act, and could be required to give the laid-off worker his job back, pay him money damages.
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By: Daniel A. Gwinn, Esq.