Before we dig in, I want to thank everyone for sending questions! As you will see each Wednesday, the issues that concern you are important and relevant to so many other workplaces. So keep those questions coming! Here we go . . .
You asked: “We have a longtime employee who is over 80 years old. We plan to have “the retirement talk” soon, using 12/31/2012 as the final day. But in casual conversations with our legal counsel, he suggests we could have a potential problem. If this person is not ready to retire and we terminate him/her, we might not be on solid ground. While this person’s health is relatively good, given the age, there are a few minor health problems that have led to some missed days. We would like to eliminate this position once this employee is gone. We plan to give him/her a nice gift and a check representing our thanks for the time and loyalty given to our company. We plan to state something like ‘We’re eliminating your position and your work can now be assumed by various people throughout the office’. Your thoughts?
The answer:
Dear Terminator,
Based upon two (2) very important facts in the situation described above … the “risk” highlighted by legal counsel is, in my opinion, minimal.
(1) Most important rule of life as an adult – “Nothing in this world is free.” A.K.A. – the money described as “thanks” for the employee’s tenure and service. In exchange for a sufficient amount of legal consideration, a Severance/Separation Agreement drafted by a competent attorney specifically tailored to the facts and circumstances can effectively bar the employee from bringing employment-related lawsuits against the Company.
(2) True job elimination (based on objective business evidence/considerations) is a legitimate factor to terminate the employment of the person holding the position. Re-distribution of job duties is a different theory and should not be confused with “true job elimination”.
Termination of employment of an employee who is covered under multiple legally “protected characteristics” – (age, gender, possibly disability) should be discussed with and planned by an attorney specializing in employment law. As such, I welcome you to contact me directly if legal advice and/or Agreement drafting, etc. is desired beyond the above “for informational purposes” Q & A correspondence.
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