The Age Discrimination in Employment Act (ADEA) is a federal law that makes it illegal to terminate employees who are age 40 or over on the basis of their age. This law applies to employers with 20 or more employees, as well as to employment agencies, certain labor organizations and the federal government. If your former employer is too small to be subject to the ADEA, state or local law could offer you protection against age-based discrimination. Below is some advice on what to do if you feel you were terminated because of your age.
You may have a viable claim under the ADEA if you can prove that your age was the motivating factor in your former employer’s decision to terminate you. Understand that the burden of proof will be on you. If you are successful on an age discrimination claim, you could be entitled to reinstatement or compensatory (money) damages such as back pay and front pay. In addition to protection under the ADEA for age discrimination, an employer with at least 15 or more employees is also subject to Title VII of the Civil Rights Act of 1964 which protects against discrimination on the basis of race, color, gender, national origin and religion, or for terminating you in retaliation for engaging in a protected activity, such as filing a claim with the Equal Employment Opportunity Commission (EEOC). Other forms of discrimination can sometimes go hand-in-hand with age discrimination.
The EEOC is the federal agency that enforces the ADEA. Under federal law, you are required to exhaust your administrative remedies before suing in federal court, so you will need to file a claim with the EEOC first and go through their administrative process before filing a lawsuit.
If you decide to pursue an age discrimination claim, you will need to collect any evidence you have to support your claim. Paperwork to collect before you meet with an attorney includes: your former employer’s employee handbook, any other written company policies, a copy of your employment agreement or union contract if you had one, your performance reviews, and any other evidence of age-related comments in e-mails or other documentation. Don’t forget that more subtle evidence of age discrimination can exist. Comments that you were “overqualified” or that you made too much money and could be considered code words for “too old.”
If your health insurance was with your former employer, don’t neglect to obtain other coverage immediately. Unpaid medical bills are the No. 1 reason for bankruptcy filings in the U.S. and one serious accident while uninsured could send you down that path. If your former employer has over 20 employees, it is required by federal law to offer you what’s called COBRA continuation coverage that would allow you to continue being covered under the employer’s plan for up to 18 months. You are responsible for the entire cost of the premium if you elect COBRA continuation coverage, however, so this can sometimes be prohibitively expensive, especially if you are covering additional dependents. You could negotiate as part of your severance package that a portion of the premium costs be paid by your former employer. Other options for health insurance are available, such as under a state law that requires smaller employers (less than 20 employees) to provide continuation coverage, a high-deductible individual policy if you are insurable, or, with the creation of healthcare exchanges under the Affordable Care Act (Obamacare), you can compare and purchase health insurance through the exchange. You can also investigate whether your state offers a high-risk insurance pool or whether you are eligible for the federal high-risk insurance pool called the Pre-Existing Condition Insurance Plan, or PCIP.
Employment discrimination lawsuits can take a number of years to be completely resolved, especially if a settlement isn’t reached. It helps to be realistic about the financial and emotional toll that pursuing litigation could take on you. If you decide to pursue legal action against your former employer, don’t neglect to take care of yourself while negotiating or litigating your claim.
As with any legal documents, closely read and understand anything your former employer gives you before signing it, and ideally, you should seek legal advice before signing. Documents could include an acknowledgement of termination letter, a severance agreement, a release of legal liability, a noncompete, nondisclosure or confidentiality agreement. It is imperative to protect yourself and fully understand the consequences of anything you are signing before you sign it.
As discussed in the previous “don’t” you may be offered a release of legal liability to sign as part of a severance package. Signing this release means you are waiving your legal rights to sue for discrimination, and possibly other rights. If you are presented with a waiver of any kind, closely read it to understand what rights you may be forfeiting and be sure to seek the advice of an attorney before signing.
If you have been terminated because of your age, the clock is ticking. Make sure you know the deadline for filing with the EEOC. In most states this is 180 calendar days from the day you were terminated, and the maximum in any state under certain circumstances is 300 calendar days (be aware there is a shorter time limit and a different complaint process for federal employees). If you are given a “right to sue” letter from the EEOC, a two-year statute of limitations applies to non-willful violations and a three-year period exists for willful violations. Other deadlines could include your deadline to enroll in COBRA continuation coverage for your health insurance or a deadline for exercising stock options, if you have them from your former employer.
Even though you may be worried about your finances and the time it could take for finding another job, resist the temptation to cash out your 401(k) or other retirement plan. Generally, if you are under age 59½, you will have to pay an early withdrawal penalty of 10%, which, when coupled with federal tax withholding, can take a significant chunk of your retirement account balance. If your former employer requires you to take your money out of the plan upon termination of employment, set up an individual retirement account (IRA) into which you can roll your retirement funds to postpone the taxes and avoid the penalty.
No matter how angry and hurt you might be, don’t disparage your former employer. Making defamatory statements (false statements that harm your former employer) about your former employer, including its business or its employees, can enable your former employer to sue you under state tort law.
If you believe there is merit to your case for age discrimination, or if you just need to obtain legal advice before signing a severance agreement or while negotiating a severance package, contact an attorney who specializes in employment law and is licensed to practice in your jurisdiction. Be sure to act quickly to avoid missing any deadlines and collect relevant documentation before sitting down with the attorney. While you are considering what course of action to take, be sure to obtain health insurance coverage immediately, don’t cash out your 401(k), and refrain from disparaging your former employer.
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