Benefits and Compensation, HR Management & Compliance

‘Thinking About Retirement?’—Danger or Diligence?

Can You Ask About Retirement Plans?

Can you ask older employees about their retirement plans? Yes, if you are careful, says BLR® Senior Legal Editor Joan Farrell. But push too hard and it starts to look like age discrimination.

If an employer has a legitimate reason, like workforce planning or succession planning, it’s not a violation of the Age Discrimination in Employment Act (ADEA) to ask an employee about his or her retirement plans. However, if the person asking the question does not tread carefully, there can be legal quicksand, Farrell says.

The first problem is when the inquiry is associated with comments about the employee’s age. Managers may be a little nervous and may try to lighten the mood with a jolly, “Well, you’re getting on up there, old timer; is it about time to hang it up and head for Florida?”

Or how about “I guess it’s time to make way for the next generation.”

That’s not the best approach, says Farrell. The inquiry should be made for business reasons, such as, “The company needs to develop its workforce development plan for the future.”

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 ‘No’ Ends the Conversation

If the employee says “No, I have no retirement plans,” that’s the end of the conversation. If you continue to press, you’re starting to move over the line toward age discrimination and harassment.

Even when an employer has a legitimate reason, asking an employee about retirement plans more than a couple of times a year may be seen as a pressure tactic, Farrell says. If inquiries are more frequent than that, or if they are perceived as pressuring the employee to retire, they may well be laying the groundwork for a successful suit.

Some experts recommend asking all employees about their plans to stay with the company, thereby avoiding the age issue.

Make No Assumptions

For sure, do not assume that an employee is retiring just because he or she has reached or is about to reach “retirement age,” Farrell says.

If, in response to your question, the employee says he or she is considering retiring (or if the employee has announced his or her intention to retire), you may act on that statement.

Finally, if the manager who asked about retirement starts treating the employee differently because the manager is not pleased about the response, that could be the basis for a suit.

Retirement planning is one challenge, and here’s another–managing wage/hour lawsuits. Wage and hour should be simple, but it’s just not. Complying with the Fair Labor Standards Act (FLSA) is one of the most confusing and challenging things comp pros have to do.

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Why are aggressive attorneys so eager to file claims on behalf of employees? Because there’s so much money to be made! Some examples are:

  • $4.75 million: Hospital in Thousand Oaks, California, settles wage and hour lawsuit over miscalculated overtime pay and failing to compensate workers for missed meal and rest periods.
  • $1.15 million: Las Vegas construction company to pay back wages to 1,060 current and former employees.
  • $976,327: New Mexico aerospace company settles with 900 employees who were routinely required to work through lunch breaks without compensation.
  • $340,400: New Jersey convenience store agrees to pay back wages and damages for violations of overtime and recordkeeping.
  • $84,541: New York physical therapist agrees to pay 22 employees for minimum wage violations.
  • $30,000: Texas chain of four gas stations agrees to pay their six hourly employees, again, for recordkeeping and overtime violations.

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