[US] The Legal Position Of Older Workers And Retirees


In the wake of recent coverage of the mistreatment of older workers and earlier reporting on age bias in hiring, Forbes recently examined the laws governing retirement and older workers.

The February 2020 cover feature of the AARP Bulletin is “Ageism in the Workplace”. The story inside reportedly examines the mistreatment or firing of older workers and the, sometimes positive, outcome of their subsequent lawsuits.

The New York Times featured an article called “New Evidence of Age Bias in Hiring, and a Push to Fight It” in summer 2019. Its thrust was that people over 50 - or even 40 - find it hard to get a job. The article stated that “Workers over 50 - about 54 million Americans - are now facing much more precarious financial circumstances, a legacy of the recession.” (All links via original reporting)

In its coverage, the Forbes piece referenced an undercurrent of people looking for the protection of a new law or for current anti-discrimination laws to be far tougher but questioned whether such laws help, drawing a parallel with laws forbidding discrimination against job applicants with disabilities. 

Overlawyered.com - a site which reportedly highlights legislation backfiring on intended beneficiaries - had carried a note on the matter from July 2000 and the Forbes piece emphasised its relevance today: 

“The Americans with Disabilities Act was supposed to improve the employment outlook for disabled persons, but instead their participation in the labor force has plunged steeply since the act’s passage compared with that of the able-bodied.”

It conjectured that the larger phenomenon of trying to improve the position of workers by edict was responsible for ambitious laws banning discrimination against the aged and those with disabilities. In the February issue of AARP, a Nevada law requiring large employers to offer paid leave that can be used for caregiving is highlighted.

The piece disagrees with the axiom that any worker benefit mandated by the legislature increases the compensation of workers by the amount of the benefit and argues that no economist would agree with it. However, it makes the case that many politicians and senior-citizen lobbies reliant on the displacement of free markets by statute books would buy-in to the idea.

It closes with the suggestion of a two-part plan to help older workers.

The first part; the longer-term action of a cultural change. A change making it customary for every salary to be automatically reduced 3 per cent a year after a worker turns 55. It suggests leaving employers free to “counteract the decrease with a merit raise”, without those raises being common practice.

The second part; a faster fix, which could be implemented right away. To repeal age discrimination laws.