Signs That A Layoff in the Age of COVID-19 Might Really Be Age Discrimination

The COVID-19 pandemic has brought the U.S. unemployment rate to levels not seen since the Great Depression.  While some parts of the country start to reopen, employers have and will likely continue to sharply trim their workforces.   Large numbers of workers have been laid off in the wake of shuttered businesses and employers who have seen a stark drop in customers and revenue.

While many layoffs may be unavoidable, some employers may use the COVID-19 crisis as a way to target older workers even when layoffs are not necessary.  Older employees often have higher salaries.  Some employers may worry that older workers who may be at higher risk for COVID-19 or may cost them more because of insurance or the need for paid time off.  Some employers might also believe in discriminatory stereotypes and think that older workers are less likely to be able to adapt to remote work and the heavy reliance on technology that comes with working from home.

With the current flood of COVID-19 layoffs, there are some red flags that could point towards an employer who is targeting employees for layoffs because of their age not because the business needs to reduce its workforce.

These red flags may include:

  • The number of employees laid off is relatively small for the size of the company but includes many experienced, older, and higher-paid employees
  • Younger, less experienced, and less expensive employees are retained and in some cases take over the work of the laid-off, older workers
  • Comments made by decision-makers about the experience level, age, higher salaries, nearness to retirement, etc. of the older employees
  • The employer hires new, younger workers within a relatively short period of time after the older employees are let go

The key federal law that prohibits age discrimination in employment is known as theAge Discrimination in Employment Act (ADEA). It prevents an employer from discharging or otherwise “[discriminating] against any individual… because of such individual’s age.” 29 U.S.C. § 623(a).  In the case of layoffs involving employees 40 or older, the Older Workers Benefit Protection Act (“OWBPA”) applies and requires employers to provide certain basic information about the layoff in writing if the company plans to offer a severance package in exchange for a worker signing a release not to bring an age discrimination case against the company. 

Under the OWBPA, the release has to meet these standards:

  • Be in writing.
  • Be written in a manner reasonably calculated to be understood by the employee.
  • Specifically refer to the ADEA.
  • Not require the worker to waive claims that may arise after the date of execution.
  • Be in exchange for something of value in addition to which the employee is already entitled.
  • Advise the worker to consult an attorney before executing the release.
  • Allow the worker 21 days to consider the offer; if the lay-off includes two or more employees who are age 40 or older, the time period to consider the offer increases to 45 days.
  • Allow the worker 7 days to revoke the agreement after execution.

The requirements of the OWBPA and the information an employer must provide can be confusing so it is important to consult an attorney if you have questions or think your layoff may have been rooted in age discrimination.  As always, our attorneys are here to help you navigate these issues.