The Older Workers Benefit Protection Act provides additional protection against workplace discrimination for individuals over 40. It supplements the current standards of the Equal Employment Act and standards established by the Equal Employment Opportunity Commission.

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The act protects workers against three basic types of age-based discrimination, including:
  • Using an employee's age as a reason to provide lesser or inferior benefits.
  • Using an employee's age as a reason for elimination from a program or termination.
  • Convincing an older employee to waive his legal rights to certain legal standards and protections.

For employers, the Older Workers Benefit Protection Act does not increase the burden of equal opportunity very much. Most of the actions prohibited in the act were already prohibited through the Equal Employment Act and supplemental case law. The Older Workers Benefit Protection Act merely consolidated and reinforced those protections.

Document Every Difference in Treatment

To avoid claims under this act, you must have good reasons for any differences in treatment among employees, as well as for suspension or termination, and you must document those reasons. Keeping good records of employees' conduct and of actions taken is essential for avoiding claims of disparate treatment. To qualify to be submitted as evidence in a court case, records must be regularly kept in the course of business; otherwise they would be classified as hearsay statements. Be as precise as possible when making records. Include dates, individuals involved, disciplinary actions taken, and any supplemental information that details the reasons for your actions.

Signing Away Rights Won’t Protect You From a Lawsuit

Under this act, you cannot make an employee sign away his or her rights, particularly with regard to potential legal action. In general, the courts take a dim view of attempts to restrict access to the legal system, particularly over employment matters. If you have a situation where you want an employee to sign away a legal right, you'll have to proceed with caution and avoid relying on a signature to protect you from a lawsuit.

If you have questions about employment law and discrimination against older workers, speak to an employment lawyer.

Get started Start Your Employment Contract Answer a few questions. We'll take care of the rest.

Get started Start Your Employment Contract Answer a few questions. We'll take care of the rest.