Age Discrimination in Layoffs Lawyer

Over 40 and selected for layoff while younger colleagues kept their jobs? A layoff does not give an employer permission to target older workers. Get advice before you sign a severance agreement.

On this page: The law · Warning signs · Before you sign · WARN notice · Remedies · Deadlines · FAQ

Layoffs and “reductions in force” are often where age discrimination happens. When a company cuts costs, experienced employees with higher salaries are frequently the first selected, sometimes replaced by younger, lower-paid workers or by the same role under a new title. California law protects workers age 40 and older from being selected because of age, even in a legitimate layoff. Smith Trial Group represents experienced professionals, managers and executives in age discrimination cases throughout Southern California.

The Laws That Protect Older Workers

• California’s Fair Employment and Housing Act (FEHA) prohibits age discrimination against employees 40 and older by employers with five or more employees.
• Salary as a proxy for age. California law (Government Code 12941) recognizes that using salary as the basis for selecting employees for layoff can be age discrimination when it disproportionately affects older workers.
• The federal Age Discrimination in Employment Act (ADEA) applies to employers with 20 or more employees.

See age discrimination for more.

Signs a Layoff Targeted Older Workers

• Most of the people selected were over 40, while younger colleagues in similar roles were kept.
• Your job was later posted, or filled by a younger employee under a different title.
• Comments about “fresh blood,” “digital natives,” “energy,” “culture fit,” retirement plans or being “overqualified.”
• Selection criteria that were vague, subjective or changed after the fact.
• Strong performance reviews until shortly before the layoff.
• Higher salary used as the reason for selection.

Before You Sign a Severance Agreement

Most layoffs come with a severance offer in exchange for a release of claims. For employees 40 and older, the federal Older Workers Benefit Protection Act sets strict requirements for a valid release of federal age claims, including:

• At least 21 days to consider the agreement, or 45 days if the release is part of a group layoff or exit incentive program.
• Seven days to revoke after signing.
• Written advice to consult an attorney.
• In a group layoff, written disclosure of the job titles and ages of the employees selected and not selected in the decisional unit.

That group disclosure can reveal patterns. Have an employment lawyer review it, and the agreement, before you sign. See severance agreement review.

Notice Requirements for Mass Layoffs

California’s WARN Act generally requires covered employers with 75 or more employees to give 60 days’ advance notice of a mass layoff, relocation or plant closing. Employers who fail to give notice can owe back pay and benefits for the notice period. See California layoff rights.

Remedies

A successful age discrimination claim can recover lost wages and benefits, future lost earnings, emotional distress damages, punitive damages in appropriate cases, and attorney’s fees. Experienced professionals often have significant lost earnings because finding comparable work later in a career takes time. Severance negotiations with a credible claim behind them often produce substantially better terms.

Deadlines

A FEHA claim requires filing a complaint with the California Civil Rights Department, generally within three years. Federal ADEA claims require an EEOC charge, generally within 300 days in California. Do not let severance deadlines pressure you into signing before you understand your rights.

Frequently Asked Questions

Can my employer lay me off because of my age?

No. Even in a legitimate layoff, California law prohibits selecting employees because they are 40 or older.

Is it age discrimination to lay off the highest-paid employees?

It can be. California law recognizes that using salary as a basis for selection can be age discrimination when it disproportionately affects older workers.

How long do I have to consider a severance agreement?

If you are 40 or older and the agreement releases federal age claims, you generally must have at least 21 days, or 45 days in a group layoff, and seven days to revoke after signing.

What is the group layoff disclosure?

In a group layoff, the employer must give older employees a written list of job titles and ages of those selected and not selected in the decisional unit. It can reveal age patterns.

What can I recover?

Lost wages and benefits, future lost earnings, emotional distress damages, and in some cases punitive damages and attorney’s fees.

How much does it cost?

The consultation is free. Age discrimination cases are often handled on contingency, and severance review fees are discussed in advance.