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Legalease
Legalease, Lawyer
Category: Employment Law
Satisfied Customers: 14510
Experience:  13 years experience in employment law, unions, contracts, workers comp law
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I am about 4 months from 62 years of age and eligible retirement

Resolved Question:

I am about 4 months from 62 years of age and eligible retirement with full benefits from my company. There is a possibility of layoff or termination within the next 4 months. What recourse do I have against this company if I was terminated or laid off just shortly before I became eligible for full benefits retirement? Should I contact HR now and advise them of my intentions to retire in 4 months? Or should I wait until 30 or 60 days prior? I'm afraid if I told them now of my intentions then I would surely be terminated or laid off prior to that date.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Legalease replied 1 year ago.

Hello there

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How long did you work for this particular company?

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How many years were you vested -- meaning how many years did they / have they paid into the retirement program on your behalf ?

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Does it appear to you that this company has had a pattern of discrimination against any employee or group of employees due to the employees race, gender, age (over 40), religion, disability or sexual orientation ?

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Have they offered any early retirement packages to any employees in the past 12 months or so? Do they have a pattern of laying people off just prior to their retirement ?

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MARY

Customer: replied 1 year ago.

Mary,


 


On Dec 8th I will be 62 and I will have worked for this company exactly 5 years.


 


I do not actually have a retirement plan. Just a 401K type plan that they add to every year I have been there along with my own contributions. I am 100% vested in that plan.


However that 401K plan or retirement plan is not my real concern. My concern is medical benefits and other benefits such as life and dental etc. for myself and my wife. With age of 62 and 5 years with this company I am eligible for full benefits package at same premiums as all other active employees plus I can continue to contribute to this 401K plan and get company matching funds if I wish.


 


I am unaware of any patterns of discrimination against any other employees or group for any reason by this company. I have had no reason to look into this or even consider it until now.


 


I am also unaware of any early retirement packages to any other employees in the past 12 months as I have had no reason to check into this until just recently. I would have no way of knowing or getting this information.


 


I am just concerned that management may be trying to terminate me just prior to my eligibility for retirement and I'd like to know what I can do to stop it or what recourse I have in the event they do terminate me just prior to my eligibility. I have no evidence that they have done this to anyone else or have attempted to do it to anyone else. I have an upline manager who just does not like me and will do anything to make my life miserable.


 


Would it help if I went ahead and notified Human Resources of my intent to retire in December? Or would it be better for me to wait as my notification to HR might get out to the wrong people and would make it almost certain that they would decide to terminate me?


 


Thanks,


 


David


 

Expert:  Legalease replied 1 year ago.

Hello again David -

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I actually stopped short there for a minute when I saw the " 5 years " in your answer because it typically takes much longer than that working for the same employer or union in order to become vested in a traditional pension plan (the shortest amount of time I have seen is 10 years -- and those pensions are few and far between these days).

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Given the situation that you are describing I do not see any legal reason why you should have difficulties getting your 401K even if you are terminated from the company with cause (with a 401K, it would be illegal of them to try to retain this money on you because most of it is your own money and does not have anything to do with the company). Regarding the portion of the 401k contributed by the employer, they CAN retain any amounts paid into your plan over the years if you are terminated for good cause shown -- but in order to be able to do this, the company would have to have a written company policy stating that an employee loses all company contributions to their 401K in the event that the employee is terminated for good cause (typically "good cause" in the eyes of the law in a termination situation would have to be something like stealing from the company or selling company secrets to competitors -- something like that -- and being terminated for performance issues does not generally meet that standard unless the company writes this into company policy or the company handbook). My suggestion here is to see if you can determine what, if anything, the company handbook states on this subject but in the absence of any such policy the company cannot retain the company contributions into your plan under termination circumstances unless the policy is specifically written into the handbook (or in some other repository of written company policy that all employees are made aware of before or during their employment). Regarding the retention of other benefits if you are terminated for performance issues or for any other cause, the company does not have to continue on with your health and other benefits until the age of 65 (or beyond, depending upon what your benefits are supposed to be).

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If you have not seen a pattern of older workers being given the boot or being forced to accept early retirement as they get closer to retirement age, then you most likely do not have anything to worry about with these issues. Generally speaking, companies can get reputations for doing this OR you will notice a recent pattern of the company trying to get older workers to take a retirement buyout in exchange for giving up rights to future benefits (such as the matching contribution in your case to the 401K). In the event that you did give your notice of retirement and they terminated you not to long after that, then you can file a complaint with the Equal Employment Opportunity Commission ("EEOC") in your state and the EEOC will conduct a thorough investigation regarding the real reason you were terminated. A termination under these circumstances does not go unnoticed or unchallenged by the EEOC (so long as you file the complaint) and there is a presumption that you were discriminated against due to your age (over 40) if you are terminated within 6 months prior to your retirement date.

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Regarding a date to inform the HR dept that you are retiring -- my suggestion is that you simply take precautions that you give them their required number of notice days -- whether it is 30, 60 or 90 days (I have seen some companies demand 180 days notice of impending retirment and if you do not comply then you cannot retire when you want to retire ). WHen you determine how many days notice that you must give, then I suggest that you simply comply with that date and give one extra days notice to be on the safe side (for example, if the required notice period is 30 days, then you should be careful to give them 31 days or MORE notice of the date of your retirement. As I said, this will not affect your overall situation and if they try to terminate you after you give notice of your retirement then you have a very good claim/complaint with the EEOC against the company that you will win.

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I hope I touched on everything that you are concerned about -- however, if you have any additional questions or there are questions that I missed, then please feel free to ask in a follow up response box and I will be happy to answer them.

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Finally, I ask that you press the 3rd, 4th or 5th smile face underneath this ANSWER below so I will be PAID for my time. I am paid NOTHING unless you press a positive rating below (a positive rating is the 3rd, 4th or 5th smile face below). Pressing the 3rd, 4th or 5th smile face below does NOT cost you any additional money -- it simply acts as the trigger used by Just Answer to pay me for my time. THANK YOU VERY MUCH !!

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MARY

Customer: replied 1 year ago.
Relist: Incomplete answer.
Answer was confusing and incomplete. I still don't know what recourse I have.
Expert:  Legalease replied 1 year ago.

Hello again David -

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I actually tried to be as thorough as possible for you in the answer above. However, I will shorten the answer so that it is not so lengthy for you. I did tell you what legal recourse that you have in the event that they try to terminate you prior to your upcoming retirement as a reaction to your telling them of the date of your retirement. Your legal recourse is to file an age discrimination complaint with the Equal Employment Opportunity Commission (EEOC) which agency will investigate the matter and determine that you were indeed discriminated against due to your age because you were terminated as a direct result of notifying the employer of your retirement date. Their actions like that would be considered a retaliatory termination under the anti discrimination laws and they would be required to reinstate you for the final months of employment and afford you access to all of the benefits that you would have received post retirement if they had not terminated you from your position when you told them your retirement date. You could also seek out a local employment attorney to make these filings with the EEOC for you if you desire but because this case would be such a slam dunk in your favor with the EEOC and you would be awarded full pay and benefits at the end of their investigation -- if you hire a lawyer to assist you then you will end up having to pay the lawyer about 33-40% of any settlement that you would receive from the employer and because of the intervention and investigation done by the EEOC your lawyer will end up doing very little work for that payment. So, in the event they do try to terminate you when you give them your retirement date, please contact your local EEOC office -- here is a link to their website -- http://www.eeoc.gov/employees/charge.cfm

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To answer your other questions -- even if you are terminated, the company must pay you your accumulated 401K including their contribution through the date of termination. After that date, the company does not have to pay any benefits in the future -- including the 401K and match and any health and other insurance that you discussed above. However, once your position is reinstated through EEOC action, the company will have to award you access to all of these same benefits on a retroactive basis back to the date that you were terminated.

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Finally -- again, there is no advantage to you in waiting to inform HR of your retirement date. You should not jump the gun and give them early notification either. You need to ask HR exactly how many days notice you must give to the company that you are retiring prior to the retirement date. Every company is different and it is a company policy that sets these dates -- there is nothing in the law that sets out these dates. So you must follow company policy on this requirement and give them advance notice of your retirement by the number of days that they request specifically.

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Hopefully those answers are a little more succint? I simply did not want to leave anything out in my first answer because you did ask me several comprehensive questions that needed lengthy answers in return.

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Please let me know if you have more questions. If not, I ask that you press the 3rd, 4th or 5th smile face underneath this ANSWER below so I will be PAID for my time before you leave the website today. I am paid NOTHING unless you press a positive rating below (a positive rating is the 3rd, 4th or 5th smile face below). Pressing the 3rd, 4th or 5th smile face below does NOT cost you any additional money -- it simply acts as the trigger used by Just Answer to pay me for my time. THANK YOU VERY MUCH !!

-

MARY

Legalease, Lawyer
Category: Employment Law
Satisfied Customers: 14510
Experience: 13 years experience in employment law, unions, contracts, workers comp law
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