• Before you terminate an employee, there’s usually a common question that’s asked by lawyers and human resource managers: the age of the employee to be terminated. If you have no experience in human resources, you might wonder why it is important to know the person’s age if he’s going to be terminated anyway.
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Employee Protection for Workers 40+ Years of Age

Employees 40 years old and above are covered under the Older Workers Benefit Protection Act, which is also known as the OWBPA. This is part of the Age Discrimination in Employment Act, or ADEA, which prohibits employers from discriminating against older employees during hiring, training, and of course up to the termination process.

Employers are required to give additional information whenever two or more employees 40 years old or above are terminated at the same time, or in a similar timeframe. The strict rules commonly apply terminating employees, but also apply to early retirement plans, separation pays, and other voluntary resignation packages where employees usually sign a release document agreeing to the terms and conditions of the termination, early retirement, separation and voluntary resignation. .

General Rules for Terminating Employees Over the Age of 40

The employer  must offer this release document outlining the terms and conditions, and the employer must have an understanding of what it means.  Additionally the employee must sign the document voluntarily, without coercement of any time from the employer.  

Generally, the release  document must include the following terms.

1. 1. It must be in writing.
2. 2. It must be written in an understandable manner for the employee.
3. 3. It must be in a clear and plain language, free from any technical jargon.
4. 4. It must not misinform the employee.
5. 5. It must not exaggerate the benefits that an employee receives after signing the release.
6. 6. It must specifically refer to the ADEA.
7. 7. It must have a specific written advice that an employee should consult a lawyer before signing.
8. 8. It must not require the employee to waive rights or other claims that may arise after the signing of the release.
9.  

Generally, employees who sign releases receive additional compensation, in addition to what he’s entitled to receive under the traditional benefit plan. The OWBPA requires that employers should give employees ample time to consider signing the release.

Typically, an employee has 21 days to consider. Material changes to the termination agreement would generally render a fresh period of 21 days, but both parties may mutually agree that the 21 days will run despite the changes.

Terminating Two or More Employee Who Are Over 40 Years

A class or group of employees who are about to be terminated have additional requirements before a release document can be released to the employer. The consideration period for terminating employees for groups of two or more would be 45 days, instead of the original 21. 

The release documents for terminating employees, usually two or more at a time, include the group of employees covered by the voluntary or involuntary exit package, the eligibility factors, the time limits, the job titles and ages of all the employees eligible, and the ages of all employees in the same group who are not eligible. The information provided aims to give employees a better decision when signing their releases.

Before terminating employees, it is always best to consult with your human resource and legal teams to ensure that every decision in the company is in accordance with the law.  Laws change and you should make sure to take the time to update yourself on the current laws relating to terminating employees. 

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