How to navigate an employment termination for a long term employee without risking age discrimination claims

by on May 28, 2009 · 0 Comment POSTED IN: HR Info Center

Dealing with long-term employees stretches out the employment termination process

The best way to deal with this is to sit down and recognize that mandatory retirement is gone. President Reagan saw to that. So you can’t wait until they just go away. It’s neither in your best interest nor theirs. Leaving people on the job where they’re not functioning well is not in their best interest usually. You’re going to have to deal with them through discipline and failing that, employment termination.

Some supervisors inherit these people. Some of these employees, when they were hired or up until recently, they were doing a great job but the job outgrew them. The legal challenge is going to be age discrimination. The Federal government sets age – old at 40 that you can’t get older, some states drop down to 18.

Don’t wait
You shouldn’t wait until they turn 65, that’s not a good practice for employment termination. Instead you should sit down with them, whether they’ve been at the company a year, or 17 years or even 30 years, and explain to them what the expectations of the job are, what improvement you need to see, and give them a reasonable time frame to fix it. Now with employees who have been around for a longer period of time, it’s going to take longer typically than a day to fix it.

Give them a chance to save their job
You need to give them a reasonable chance to save their job, whether that’s 30 days, 60 days, 90 days — it will be rare that it would go over six months to be reasonable. That may seem like a long time, but if the company’s put up with this for 23 years, it doesn’t make sense to get antsy now. Give them a reasonable chance to save their job.

Provide them with options prior to employment termination
Another option is to move the employee or make an offer to the employee to move at that rate of pay, maybe down to a rate of pay where they can function up to minimum standards as a tool for salvaging the employee. Don’t use it as a punishment to make them miserable until they quit, that’s not a safe form of employment termination. But a longer term employee is going to put pressure on this definition of reasonable chance to save their job. It’s not impossible, but just it’s just going to take a little longer. So stay patient, set the expectations, and consider different options other than employment termination.

Some companies will say buy them out. And you can’t do that. Only do that on advice of legal counsel. A buy-out, especially when it comes to long term employees, is not going to be cheap. There’s a law called The Older Workers Benefit Protection Act. It means they get 21 days to review it among other things. Seven days to change their mind. So, it’s not an easy alternative to employment termination but it’s an option. Only do that on advice of legal counsel.

But a longer term employee just kind of stretches out the employment termination process. And even though it may not have been your fault, don’t get antsy after the employee’s been there 20 years.

Edited remarks from the Rapid Learning Institute webinar: “Yes, You Can Fire Without Fear! What Every Supervisor Needs to Know” by Hunter Lott, Esq. on August 22, 2007

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