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John
John, Employment Lawyer
Category: Employment Law
Satisfied Customers: 5557
Experience:  Exclusively practice labor and employment law.
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My company, a municipal utility in Oregon, are going through

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Hi, my company, a municipal utility in Oregon, are going through layoffs and offering an early incentive type pay to retire early if one qualifies. I was told I qualified and I applied but they are clear that I can withdraw the application up until the day before I planned on leaving, a date they set. My manager came to my office and said because I applied for the early retirement and appeared to him to be "burned out" I may not have a place in the company and they may be eliminating my position. I'm 58 years old and the person taking over my position and doing the work of two people now is 50. Does this look like age discrimination?
JA: Because employment law varies from place to place, can you tell me what state this is in?
Customer: Oregon
JA: Is the employment agreement "at will," union, full time or part time?
Customer: I have no employment agreement, and I work full time. I've been there for 19 years and my performance has always been documented as well above average.
JA: Anything else you want the lawyer to know before I connect you?
Customer: I can't think of anything.

It would be difficult for you to prove a case with your facts. Granted you are over 40 and in the protected class as such, but so is the person with whom they are replacing you. The statement y thhe manager does not reference your age...in theory a person of any age could appear burned out...you could argue that age correlates with "burn out" but they could just retort it was something else that made you appear burned out. In short, you could file a case, but I'm of the opinion that you have a low probability of winning.

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Customer: replied 7 days ago.
You didn't answer the issue that because I applied for a voluntary early departure incentive i may be getting laid off. That was never specifically stated in all the literature and meetings I attended.

I see. You would have a claim under ERISA, but not the ADEA. Under ERISA it is illegal to terminate someone because they are using an employee benefit, in your case the early retirement option. You should contact an employment lawyer in the event you are terminated before the early retirement.

Hope this answers your questions. Thanks.

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