Two firefighters sued the Mount Lemmon Fire District for age discrimination under the ADEA after the Fire District laid them off. The Fire District sought to dismiss the lawsuit on the basis that it was too small to be a covered “employer” within the ADEA’s definition of the term as it employs fewer than 20 employees. However, the ADEA includes the following definition of an employer:
The term ‘employer’ means a person engaged in an industry affecting commerce who has twenty or more employees…. The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State….
Focusing on the “also means” language, the Court held that the ADEA was intended to apply to all public employers without a consideration of the number of employees that they have.
What does this mean for Oregon employers? In Oregon, the state age discrimination law already offers greater protection than the ADEA in that all employers, whether private or public, are covered if they employ one or more employees. Additionally, Oregon’s age discrimination law protects individuals who are 18 years of age or older, whereas the ADEA only protects individuals who are 40 years of age or older. However, even in Oregon, smaller public employers should still be mindful of the Court’s holding especially when offering a settlement or severance agreement to an employee. Specifically, all public employers regardless of size should include a release waiver of claims under the ADEA and comply with the requirements of the Older Workers Benefit Protection Act (OWBPA) to effectively release a claim under the ADEA. The OWBPA requires that any waiver of an ADEA claim:
- Be in writing and be understandable;
- Specifically refer to ADEA rights or claims;
- Not include a waiver of rights or claims that may arise in the future;
- Be in exchange for valuable consideration more than the employee is otherwise entitled to receive;
- Include advice in writing to consult with an attorney; and
- Provide the individual at least 21 days to consider the agreement and at least 7 days to revoke the agreement after signing it.
Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. Alerts are not intended as legal advice, but as employment law, labor law, and employee benefits announcements. If this has been forwarded to you, and you would like to begin receiving Electronic Alerts directly, please email or call Traci Ray at 503-276-2115. Copyright ©2018 by Barran Liebman LLP.
Las Alertas electrónicas son escritas por abogados de Barran Liebman para sus clientes y amigos. Las Alertas no son proveídas como asesoramiento legal, sino solo como anuncios de leyes de empleo, leyes laborales y beneficios de empleo. Si esto ha sido remetido a usted y quisieras empezar a recibir las Alertas directamente, por favor mándanos un correo electrónico o llama a Traci Ray al 503-276-2115. Derechos de autor ©2018 por Barran Liebman LLP.