How to Tell If Your Employer Is Violating the Age Discrimination in Employment Act (ADEA) STAFF PICK

Jennifer Norton Weil

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Bankruptcy Attorney

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Posted almost 6 years ago. 19 helpful votes

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1

How Many Employees Work for Your Employer? Are You 40 or Over?

An employer must have 20 or more employees before it is covered by the ADEA. Age discrimination at an employer with fewer than 20 employees is not actionable under the ADEA. However, there may be other applicable state and/or municipal laws, so check with a local attorney if you believe that you are experiencing age discrimination in your workplace. Also, the ADEA only applies to age discrimination against employees who are age 40 or older, so make sure you fall into this category as well.

2

Were You Denied Benefits Based on Your Age?

The ADEA prohibits the denial of employee benefits to employees based on their age, with a few important exceptions. This can be a complex area of law, depending upon the benefits involved, so if you are in this type of situation, you should contact a local attorney who has some experience with employee benefits.

3

Were You Not Hired Because of Your Age?

If you are age 40 or older and you were not hired because of your age, you may have a claim under the ADEA. Evidence of age discrimination may be difficult to obtain, however. Comments about age may be used as evidence, but it helps to have other witnesses. Employers may ask a job applicant for his or her date of birth, but asking this question may show an intent to discriminate on the basis of age. Thus, a request for an applicant's age may be examined closely if a charge of age discrimination is brought later. Also, age limits may be permissible in certain occupations where the age limit is considered reasonably necessary to the operation of the business.

4

Is Your Employer Asking You to Waive Your ADEA Rights?

A waiver of rights under the ADEA is permissible, so long as the waiver fulfills certain requirements. These requirements are to ensure that the employee waives her rights knowingly and voluntarily. The waiver must: i) Be written in understandable language; ii) Refer to ADEA rights; iii) Not require the employee to waive rights arising after the waiver date; and iv) Be in exchange for consideration. And employees must be given the opportunity to consult an attorney before signing the waiver. Employees must have 21 days to consider signing the waiver and 7 days to revoke the waiver after signing. But if the employer wants the waiver as part of an exit incentive program offered to a group, 45 days must be given to consider signing the agreement. Written notice must be given to the group covered by the program.

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