Protecting older employees

Wednesday, June 25, 2008 | 2:07 a.m.

Older workers who are not ready for retirement received support last week from the U.S. Supreme Court.

When a layoff adversely affects older workers more than their younger colleagues, employers have the burden of proving that the action was based on some “reasonable action” and not age.

The 7-1 decision was rendered Thursday in a case filed by 28 employees who were laid off from Knolls Atomic Power Laboratory in New York state. Knolls laid off 31 employees, 30 of whom were older than 40. Federal Age Discrimination in Employment Act protections apply to workers 40 or older.

The age discrimination law says a layoff or other employment action that would be “otherwise prohibited” by the law is allowed if the employees affected were chosen for reasons that are “based on reasonable factors other than age.”

Until the court’s decision last week, it was unclear who had to prove those factors — the employer or the affected workers. In the majority opinion he wrote for the court, Justice David Souter said the burden of proof lies with the employer.

“There is no denying that putting employers to the work of persuading fact-finders that their choices are reasonable makes it costlier and harder to defend,” Souter wrote. But it would be up to Congress to consider that issue and any changes to the law.

David Certner, the chief legislative counsel for AARP, told The New York Times that the decision is “vital to the creation and maintenance of a workplace that is fair and free of age bias.”

U.S. Census figures from 2005 show that 47 percent of private sector workers are at least 40 years old, and the number is at least 50 percent for federal, state and municipal governments. About 60 percent of federal workers are expected to reach retirement age over the next 10 years alone.

Employers should be looking for incentives to keep these experienced and dependable workers on the job, rather than crafting ways to fire them.