Wisconsin’s Fair Employment Law and the Age Discrimination in Employment Act, a federal law, prohibits the discrimination of workers above the age of 40 from all private and public employers to ensure that qualified older workers are not denied the right to gainful employment. While the Age Discrimination in Employment Act only applies to employers with 20 or more workers, Wisconsin’s Fair Employment Law covers all private and public employers, regardless of the number of employees. These state and federal laws protect older workers against discrimination in regards to discharge, job assignments, leave or benefits, licensing, retirement benefits, hiring, pay, promotion, training, and other employment actions. In addition, the law prohibits the employer from retaliating against those who assert their rights under the law.
The purpose of this state law is to promote the employment of older workers based on their ability to perform the job; however, employers may still terminate an employee if he or she is physically, or otherwise, unable to perform the essential job functions. A reasonable accommodation is not required to be given to an employee over the age of 40, unless he or she has a disability. State law prohibits job advertisements, application forms, or other materials that imply or express a limitation based on a person’s age. Ads calling for “young energetic employees” may be deemed unlawful. It is also unlawful to deny an employee a promotion or training because of their age. In the event of lay-offs, employers may not target older workers when deciding who to let go, or transfer older employees to units where they are more likely to be affected by lay-offs. In the hiring process, the term “overqualified” may be a sign of age discrimination. State law prohibits an employer from not hiring an experienced older person based merely on the assumption that he or she might become bored or dissatisfied and leave the job.
Early retirement may or may not be perceived as a lawful approach in reducing a workforce. The complaint often relies on the opinion of the person being offered early retirement, and the approach the business takes in issuing the offer. If the offer is based on business necessity, it will most likely be considered legal, however, forced early retirement based on a person’s age is illegal. When asked to sign a waiver or release agreement for early retirement you should know that in order for the agreement to be legal the signor must do so in a knowing and voluntary manner, and the agreement must meet these requirements under the ADEA:
- Be written in plain language
- Make reference to right or claims arising under the ADEA
- Not waive rights or claims arising after the waiver is signed
- Waive rights or claims only in exchange for money or other benefits in excess of those already entitled to
- Advise the employee to consult an attorney before signing
- Give the employee at least 21 days to consider the agreement before signing
- Permit the employee to revoke the agreement within 7 days after signing
While WFEL and the ADEA protect workers over the age of 40, it does not protect those under the age of 40. Employers can legally give a hiring preference to older workers. On the other side, employers are exempt from following the WFEL and ADEA laws in instances where the job involves physical danger, prospective future advancement to a higher level job, driving a school bus, for insurance purposes, and for retirement plans.
If you feel that you have been discriminated against because of your age, you must file a complaint with the Equal Rights Division of the Department of Workforce Development within 300 days of the discriminatory action. In order to prove age discrimination the employee or applicant must meet the following standards: that he or she is 40 or older, that he or she was qualified for or was satisfactorily performing the job, that some adverse employment action was taken, and that a younger worker was selected for the position or treated more favorably. The key piece of information that needs to be proven is whether age was a determining factor in the action taken. This complaint process can be a long and grueling one; an experienced employment law attorney can help. Please comment below or contact Krueger Hernandez & Thompson SC with any questions regarding any of your legal issues.