We’ve been updating you on all the new and upcoming laws, but let’s not forget the basics, like the Age Discrimination in Employment Act (ADEA). The EEOC’s recent settlement with Exact Sciences is a good reminder that we cannot make employment decisions based on things that appear to relate to a candidate’s age. The EEOC’s lawsuit alleged that the third-party recruiter for Exact Sciences told an applicant that he was “overqualified” and that the company wanted “someone more junior” who could “stay with the company for years to come.” The EEOC and Exact Sciences settled the dispute. In addition to paying $90,000, Exact Sciences will implement training for hiring managers and ensure their recruiters are aware of the company’s policies prohibiting age discrimination.

ADEA Basics

As a reminder, the ADEA applies to employers with 20 or more employees and prohibits discrimination against individuals who are age 40 or older. While some state laws protect people younger than age 40, the ADEA does not. Under the ADEA, it’s okay for you to choose an older worker over a younger worker (although best practice is to stay away from age-based decisions if possible). As the Exact Sciences settlement reminds us, the ADEA applies not only to your company but also to any recruiters you use.

Do This in Early 2024

• Train your supervisors and hiring managers. Training your supervisors and hiring managers on employment issues is always a best practice. The new year is a great time to gather your supervisors, hiring managers, and HR employees to remind them of the various employment laws that may come up and how to comply with them. Our blog contains several scenarios you can use to pull in examples of what not to do and topics for training.
   
• Make sure any recruiters you use know your policies and abide by them. Not only are you required to make sure your employees are abiding by your company’s policies, but you should make sure your third-party vendors know your policies and follow them. Take the time now to review any agreements you have with third-party recruiters to be sure they are clear about your expectations.
   
• Most importantly, make decisions based on qualifications. While the ADEA allows you to favor an older worker over a younger worker, it is generally best practice to avoiding using age as a reason for any employment decision and some states (like New York) prohibit age discrimination against people younger than age 40. Instead of using age (or any other protected status), use the applicant’s qualifications as a basis for hiring decisions. This practice will help to make sure you always hire the best applicant.

Finally, remember the ADEA is not the only federal law protecting older workers. The Older Workers Benefit Protection Act (OWBPA) also protects older workers’ employee benefits and requires any waiver of ADEA rights to be knowing and voluntary. If you are offering a severance package to an employee age 40 years or older or if you are getting ready for a reduction in force, you may need to take extra steps to protect yourself from age discrimination claims. As always, contact your employment lawyers with any questions. Have a happy and safe holiday!