No age limit on employees

Date: 2009
Author: Daniel A. Lublin
Publication: Metro

Short-term Employees entitled to significant payouts

In my column last week, I reviewed how Canadian workplaces have adapted to the ban on mandatory retirement. Many have found ways to subvert the legislation by creatively finding ways to transition older employees into retirement. Employees should focus on the following:

  • Severance arrangements. In a case I recently argued, the court awarded an older employee greater severance than his younger counterpart despite having worked for less time. Courts have consistently held that an employee’s older age should translate into a greater severance entitlement. Even short-term employees will receive significant payouts where they may not be able to promptly reemploy due to their age. This is because it is presumed that an older employee will have more difficulty securing reemployment. Similarly, older employees cannot be targeted for termination, downsizing or layoffs, due to concerns about productivity or accommodation.
  • Insurance policies. Upon termination, employers and their benefits insurers are required by legislation to keep all benefits, including life and disability insurance available for a defined period of time. Not all companies comply. Similarly, older employees should be given the option of converting from a group insurance plan to an individual plan upon termination.
  • Sick leave plans that make benefits unavailable based on age have been found to be discriminatory.
  • Performance reviews. Older employees cannot be selected for criticism, demotions or accused of failing to produce if the assessment of these criteria is related to age. Naturally, as performance reviews are unlikely to overtly mention an employee’s age, indirect or subjective criteria can also be improper. In a recent case, the court found that workplace changes should be considered under the lens of the employee’s ability to adapt, and as older workers may have a more limited ability to respond to new work or efforts to be retrained, employers may have to accommodate them in ways that were not previously contemplated.
  • Duty to accommodate. Older employees are entitled to accommodation for any age related illnesses, or perceived illnesses, which would even include flexible scheduling in order to attend doctor’s appointments, working from home and job sharing arrangements.
  • Job advertisements or promotions. Interview questions and job advertisements cannot be designed to obtain age-related information. Otherwise qualified candidates cannot be denied a position or promotion based on concerns they lack energy, enthusiasm or career potential, unless such questions related to a bona fide occupational requirement. In a file my firm is handling, the employer, a trucking company, has argued that it was a requirement of the job that the employee be younger in age to avoid any potential liability or safety concerns for motorists. The conclusion to the case will be, I suspect, based on whether the employer can find any objective evidence to support this theory.