In this week’s continuing series on demystifying employment law, we focus on some of the most common and often confusing employment legalities. As we stressed yesterday, small businesses have it hard enough having to tackle the problems of the slow economic recovery and the uncertainty brought forth by the upcoming elections and looming fiscal cliff. However, the concerns don’t stop there for small business owners as they are constantly required to meet specific laws and compliance issues. There is nothing necessarily wrong with laws as many are to serve a beneficial purpose but the worst part is that there are so many employment laws to be concerned with, e.g. (ADA,  ADEA, COBRA,  FCRA,  FLSA,  FMLA,  GINA,  HIPAA,  NLRA,  OSHA,  Title VII,  USERRA,  WARN).

Today we will focus on the Age Discrimination in Employment Act (ADEA). As the Equal Employment Opportunity Commision (EEOC) describes ADEA, it is federal law prohibiting age discrimination by employers of 20 or more employees against people over age 40, except where age is a bona fide occupational qualification or where the person is in a certain key executive or policy-making position and his or her retirement pension will be in excess of $44,000 per year. Such employees may be required to retire at age 65. That may sound fairly straight forward but believe me there are many details and nuances that you can’t afford to get wrong. Luckily, Manpower has created a terrific cheat sheet for dealing with ADEA that we present below:

ADEA CHEAT SHEET (via ManpowerGroup)

What employers are covered?

Those with 20 or more employees.

What’s prohibited?

• Age discrimination, unless based on a BFOQ
• Hostile work environment based on age
• Retaliation or harassment for exercising ADEA rights

What employees are covered?

Persons age 40 and older.

What is a “BFOQ”?

A BFOQ is a bona fide occupational qualification. In general, an employer can’t prove that age is a BFOQ unless it can establish that all or almost all members over the selected age can’t safely perform the essential functions of the job. A BFOQ is difficult to prove unless the position at issue directly affects public safety.

What’s not prohibited?

An employer may take adverse action against an employee who is protected by the ADEA for non-discriminatory reasons unrelated to age.

How do you obtain a waiver of ADEA rights?

• Obtain a written release executed by the employee that specifically refers to the ADEA.
• Provide 21 days for the employee to consider the waiver and advise the employee to consult an attorney.
• Provide 7 days for employee to revoke the waiver after signing.
• In RIF situations, provide 45 days for the employee to consider the waiver and an attachment to the waiver that contains the following:
• the selection criteria for the RIF and any applicable time limits and
• a list of job titles and ages of each person subject to the RIF and those employees who fall into the same organizational unit but were not subject to the RIF.

Top ADEA Tips

• Don’t ask for an applicant’s age at any point during the application process.
• Prohibit all age-related comments from the workplace pursuant to an effective anti-harassment policy.
• Base any employment actions on factors other than age (or other protected characteristics).
• Apply performance standards, policies and procedures, and access to benefits uniformly without regard to age.
• Document poor performance and disciplinary measures taken against employees.