Layoff Guide: Know Your Rights
Older Workers, Americans with Disabilities, and Other Protections
The hard truth is that the United States has an at-will employment model which means that an employer can terminate you as an employee at any time, for any reason, or for no reason at all without consequences.
At-will employment also allows employers to change the terms of your employment agreement with no notice and no consequences. That includes terminating benefits or altering wages. The exceptions to this employment model are government jobs and workers who are part of a union.
Fighting against this system will be an uphill battle, but there are legal protections for some groups of people. In this article, I’ll cover three laws that you should be aware of and which offer some protection from discrimination during a layoff.
Older Workers Benefit Protection Act (OWBPA)
The Americans with Disabilities Act (ADA)
and Title VII of the Civil Rights Act
Note: I’m not a lawyer and this is not legal advice. I’m simply highlighting your rights as workers so that you can identify if and when you need to seek legal counsel.
Older Workers Benefit Protection Act
OWBPA is a federal law that requires employers with 20 or more employees to offer older workers benefits that are at least equal to those of younger employees. This means that an employer can’t withhold benefits like health insurance coverage because the premiums are higher for older employees compared to younger employees.
What I want to highlight here is that this law applies to employees who are 40 years of age or older. That’s about 50% of the working population. So if you were laid off, or are concerned that you may be soon, know that you have additional rights that employers must comply with. The OWBPA specifically covers legal waivers that older employees may be pressured to sign if they are laid off or otherwise terminated.
Why do we need this law?
Companies layoff their employees when they need to reduce their costs for business reasons. Since older workers can have more experience in their fields, they are often paid higher salaries than younger workers. Getting rid of the highest paid employees seems like the easy choice for employers when cutting costs. This is age discrimination.
Companies want older employees to sign release waivers upon termination saying they won’t sue the employer for age discrimination. OWBPA says that employers must meet certain requirements when laying off these workers.
What are release waivers?
When you’re terminated at a company, your employer wants you to sign a severance agreement that absolves them of any legal liabilities. Basically, if you sign it, you can’t sue for discrimination.
Employers will frequently include incentives to sign like severance pay, extended benefits, or outplacement services to help you find a new job. Since the employee isn’t at fault for their termination during a layoff, it’s considered good will for their employer to offer some sort of support.
When it comes to older workers, any release waivers included in this paperwork have to meet certain requirements that ensure that the company doesn’t mislead or coerce these employees into signing the waiver without understanding their rights.
Here are some key requirements you should be aware of:
Waiver must be written in a manner that’s clear and specific enough for employees to understand. It can’t contain technical language or legal jargon.
Waiver must reference the Age Discrimination in Employment Act (which includes OWBPA).
Employers must allow at least 21 days for consideration of the severance offer so the employee can weigh the advantages and disadvantages of signing. This increases to 45 days if there’s a group layoff that includes more than one person over the age of 40.
Waiver must be signed with the knowing and voluntary consent of the employee. Pressure or coercion risks the waiver’s legality.
Employers must allow 7 days after signing for the employee to revoke their consent if they change their mind.
Waiver must include advice about seeking legal counsel before signing.
If the waiver, which releases the company from any age discrimination claims, doesn’t have these requirements listed (among other requirements), then the waiver is invalid and unenforceable.
Americans with Disabilities Act
The Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodation to any employee or job applicant with a disability unless it would cause the company significant difficulty or expense.
It also protects workers from being discriminated against based on their relationship with someone who’s disabled. For example, an employee who has a disabled spouse or child. This law forbids discrimination in any part of employment process including hiring, pay, promotions, benefits, and layoffs or firings.
A person has a disability if they have a physical or mental condition that limits their abilities. This includes the ability to walk, see, hear, or learn. A person could also have a disability if, for example, they’re in remission from cancer. Lastly, a person has a disability if they have a physical or mental condition that’s permanent (it won’t go away in 6 months or less).
There’s no formal list of disabilities that are covered under the ADA. Such a list would undoubtedly leave some disabled people without protection. The law generally covers physical and mental impairment as well as psychological disorders. Here are some examples:
Cancer
Blindness
Diabetes
Autism
HIV infection
Mobility impairment, like needing a wheelchair
Missing limbs
Bipolar disorder
Major depressive disorder
Post traumatic stress disorder
Schizophrenia
In order to be covered, you need to disclose your disability to at least one person at your company, like your supervisor or human resources. You are NOT obligated to provide medical documentation but may want a doctor’s note if your disability isn’t visible.
This is a very personal decision and not everyone is comfortable disclosing a disability. If you need accommodations though, like limited working hours or special equipment, you should consider disclosing.
Title VII of the Civil Rights Act of 1964
Under Title VII, it’s unlawful to discriminate against someone on the basis of race, color, national origin, sex (including orientation, gender identity, and pregnancy), or religion. It also protects workers from retaliation who file a charge or otherwise complain of discrimination.
When it comes to large layoffs, at-will employment makes it hard to prove discrimination under Title VII. You’d need to have evidence that you were targeted because of your protected class, rather than just being one of many in a layoff.
If you feel that you are being discriminated against, document your conversations. You may not get your job back, but written HR reports (including over email) can help your discrimination case.
Other legal protections
There are a few more reasons that employers may want to get rid of certain workers during a layoff. Here are some additional legal protections:
An employer can not terminate an employee (including months later) for filing a workman’s compensation claim.
Employees are protected by federal whistleblowers laws when they report OSHA violations ranging from money laundering to unsafe working conditions.
The Family Medical Leave Act (FMLA) entitles eligible workers to take up to 12 work weeks unpaid to care for an ill family member, if they are ill themselves, after the birth of a child, or after the adoption of a child. Their job is protected and they can retain their group health insurance coverage.
What can you do to protect yourself?
It’s not always possible to prove discrimination. That’s because most employers are not required by federal law to disclose the reason that they’re laying off an employee. Some states do mandate disclosure of a reason but will accept something like “business restructuring.”
What you CAN do is learn your rights so you can spot signs of discrimination. If you are aged 40 or older, your employer MUST meet all of the requirements in OWBPA. Insist on taking time to review a severance agreement and release waiver with your lawyer before signing. It’s your right.
If you have a disability, even one that’s invisible like chronic pain or mental illness, consider whether you want to inform your employer so you can protect yourself if your employer refuses to accommodate your needs.
Check out the rest of the Layoff Guide:
How to Take Care of Yourself, Your Finances, and Your Health
Understanding Severance Agreements
Can I Earn Money While Receiving Unemployment Benefits