Steven V. Modica, founding partner of Modica Law Firm, recently was appointed by the Hon. Gerald J. Whalen–Presiding Justice of the Appellate Division of the New York Supreme Court, Fourth Judicial Department–as Chairperson of the Seventh Judicial District Attorney Grievance Committee. Modica has served on the Committee since 2017. His appointment to serve as Chairperson runs through March 31, 2020.
Rochester Business Journal–Managers at Work
Q. “I’m the manager of a small department and I’m near the traditional retirement age of 65. Recently, I was surprised to be asked by a couple of different senior managers about when I plan to retire. The truth is I don’t know yet. I enjoy my work, I’m in good health and I’m not at the point in my personal life where I’m ready to set a date. I understand the need for succession planning but where is the line between asking about my plans and harassment? Separately, I’ve also heard that there may be layoffs in the works at this company, so they may be encouraging more older employees like me to retire. Please advise. “
A. Your inquiry is certainly understandable at a time when age discrimination is rampant. According to AARP, two out of three workers between the ages of 45 and 74 say they have experienced or seen age discrimination at work and those over age 35 say age is a top obstacle to getting hired.
Despite laws intended to protect older citizens, there were 20,857 age discrimination complaints filed with the U.S. Equal Employment Opportunity Commission in 2016. In one recent study testing for age discrimination, cited in the December 2017 AARP Bulletin, researchers sent more than 40,000 resumes to apply for more than 13,000 job openings posted online in 12 cities. The researchers applied to each posting with three resumes representing different age groups (young, middle-aged and senior).
“Even though all had similar skills, older candidates received far fewer callbacks than young or middle-aged workers,” wrote Kenneth Terrell for AARP.
AARP surveys show that not getting hired is the most common type of age discrimination (19 percent of survey respondents), followed by missing out on a promotion (12 percent) and getting laid off or fired is third (8 percent).
Despite the complaints, the number of older individuals working or looking for work (those in the 65 to 74 and 75 and older range) is expected to increase faster than most other age groups through 2024, according to the Bureau of Labor Statistics.
So you’re not alone in wanting to keep working. But there is, as you point out, a difference between your employer making inquiries about your retirement plans and harassing you about it.
“I often hear this type of allegation in age discrimination cases,” says Sharon Stiller, partner with Abrams, Fensterman Fensterman Formato Ferrara Wolf & Carone LLP. “But I don’t think that these inquiries alone would be sufficient to make out an age discrimination case, as disconcerting as they can be. The employee should simply answer that they have no plans to retire in the near future.”
Asking about an employee’s retirement plans is “not illegal on its face, “says Steve Modica, attorney and owner of Modica Law Firm in Rochester. But the critical legal issue is why the employer made the inquiry.
April 4, 2018
My client is on sabbatical this semester. He is currently working with the restorative justice program, helping his students with their research and doctoral theses, and trying to rebuild his department. Three investigations have found he violated no rules or policies. One recent independent report interviewed 64 students who worked in my client’s laboratory from 2007 until the present. The investigators found no complaints of harassment, but rather a nurturing environment that successfully supported students’ research and careers. Teaching and advising is part of my client’s professional responsibilities, and he is looking forward to continuing to fulfill them.
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