EMPLOYMENT LAW  

Two federal statutes protect the employment rights of the elderly and the disabled. 

The Age Discrimination and Employment Act of 1967 (ADEA)

The ADEA makes it unlawful for an employer to discriminate based upon an employee’s age.  The ADEA protects persons age 40 and older.  A presumption of age description occurs when a person over age 40 is laid off or passed over for a promotion and the replacement employee is under age 40.

An employer can fire an employee of any age for cause, for a bona fide business reason, but pursuant to the terms of an employment contract.

An employer can ask an employee to sign a waiver of the employee’s rights under the ADEA.  However, for the waiver to be valid, it must include the following: 

• The waiver must be in writing.
• The terms of the waiver must be clear and understandable by the employee.
• Future claims that may arise under future acts by the employer cannot be waived.
• The employee must receive valid consideration in exchange for signing the waiver.
• The waiver must advise the employee to consult an attorney before signing the waiver.
• The employee must be given at least 21 days to consider the waiver agreement before signing and 7 days to revoke the waiver agreement after signing.

The Americans with Disabilities Act of 1990 (ADA)

The ADA prohibits private employers, state and local governments, and labor unions from discriminating against qualified individuals with disabilities in hiring, firing, advancing, compensation, job training, and other terms and conditions of employment where there are 16 or more employees.

A person “with a disability” must meet the following criteria:

• The employee has a physical or mental impairment that substantially limits one or more major life activities.
• Medical or other records document the employee’s disability.
• The employee has disclosed the nature of his/her disability to the employer and has asked the employer for reasonable accommodation in the workplace.
• The employee with reasonable accommodations is qualified to perform the job.

Examples of “reasonable accommodation” are:

• Job restructuring
• Modifying work schedules
• Modifying workplace to be accessible and usable by the disabled
• Modifying equipment and machinery to accommodate the disabled 

An employer is not required by law to lower the quality of services or production standards.  Further, an employer does not have to provide reasonable accommodation if such accommodating provides “undue hardship” to the employer.

Federal income tax credits are available to employers who hire and accommodate the disabled:

• Small Business Tax Credit, Internal Revenue Code § 44
• Work Opportunity Tax Credit, Internal Revenue Code § 51