Can an employer inquire about an older employee’s retirement plans without risking an allegation of coercion or age discrimination?
Question: Can an employer inquire about an older employee’s retirement plans without risking an allegation of coercion or age discrimination?
Answer: Employers should avoid directly singling out an older employee regarding their plans for retirement. Directly raising the question puts the employer at risk of a possible allegation of age discrimination.
Instead, employers should exercise an open-door policy, encouraging employees to freely discuss their thoughts on their career advancement or retirement plans. Another proactive measure employers may consider is obtaining information from all employees, regardless of age, on their plans for continuing employment and career transition. It is common for leadership positions to have a career transition and successorship plan in place, and so these inquiries could be made without any relation to the age of the employee.
If the employer is considering parting ways with an employee and would like to characterize the termination as a retirement, then it is recommended that this be discussed with the employee directly when advising them of their termination. It is important that the employee is aware that their employment will be terminated in either event, but that if they wish for the termination to be characterized as a retirement then the employer would be prepared to frame it in that manner.
It is important to note that such discussions will always be in the context of the employer ending the employment relationship and not the employee. As a result, notice or pay in lieu of notice, will need to be provided to that employee in accordance with the employee’s employment agreement, governing employment legislation and, if applicable, common law.
Amy Gibson is an associate with MLT Aikins in Saskatoon, practising general labour and employment law. She can be reached at (306) 956-6994 or [email protected].
