Bloomberg Law recently spoke with age discrimination lawyer Eric Bachman about the Catch-22 that many older employees may find themselves in once companies start rehiring employees: “Return to work and risk exposure, or refuse and face potential retaliation.”
Bloomberg reporter Erin Mulvaney noted that if “this growing sector of the workforce wants to challenge hiring and firing decisions in court, they’ll encounter legal hurdles while dealing with a more difficult economic recovery compared to younger workers. Return-to-work plans on the horizon and companies reducing their workforce may mean a spike in age discrimination claims, employment attorneys and academics say.”
In the interview, Bloomberg asked Bachman about certain red flags that may suggest a company is targeting employees because of their age rather than a legitimate business need to conduct layoffs. Bachman explained how “[c]ompanies that have a small layoff of only experienced, older, and higher-paid employees, while keeping less expensive employees, are at risk of lawsuits[.]”
Other warning signs include comments made about age and employers hiring back younger employees in a short period of time. Incorrect assumptions could be made about older workers having costlier benefits or being more susceptible to Covid-19, or that they’re ill-equipped to perform in a more remote, technological environment, he said.
“While most companies will follow the law, my bet is that certain employers are going to use this as an opportunity to shed older workers who have higher salaries and are closer to retirement age,” Bachman said. He added, “A heartbreaking aspect of this rehiring process will be scenarios in which older workers are concerned about returning to work in-person if Covid-19 infection rates are still high. If the employer won’t allow them to work remotely, these older employees may literally be forced to choose between losing their job or possibly their life.”
To learn more about claims of employment discrimination under the Age Discrimination in Employment Act (ADEA), please see our resources.
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