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>> Good evening.

Thank you so much for joining us here on PBS for when the show is called LIFE Ahead know Sandy Thomson but the real stars of the show you'll meet in just a moment.

We're going to be talking tonight about reach retirement and what happens if you have some problems with that return and if you're asked to sign a release, are there discrimination's you need to know about so a lot of a lot of things within that topic and I invite you to give us a call with questions that you might have our guests tonight or attorney so they would be able to give you the legal explanations for it was questions the number (969) 27 twenty give us a call any time here in the next half hour.

We don't have any commercials we're going straight through.

Let's get started.

First of all by having you meet our guest you've both been here before so maybe you recognize that we have Troicki for with us here on the far side of Troy and Ted's store.

>> Thank you so much for coming back.

>> Thank you, Sandy for having us.

We did a similar topic about a year or so ago and we had some very interesting phone calls and I encourage you if you have phone calls to get on the phone and get in to us here and we we love it when you are willing to talk to us live on the air because that way if Ted or Troy have questions back to you, you're right there on the phone.

But if you don't feel comfortable doing that, that's OK. We have somebody answering the phone in the control room that will take your questions.

Keep it up and send it out to me here on the teleprompter and I'll ask them for you.

Well, until we get some phone calls, let me ask you guys a few questions.

>> OK, let's start with the age 40.

That seems to be a magic number.

Why is that what's the concern about being 40 and asked to leave?

>> Sure.

Well, the age of 40 if you look at statistics, the United States Bureau of Labor Statistics came out and the median age of all of our employees in the United States is forty two point seven years as of the census in 2023.

So that corresponds with a law called The Age Discrimination in Employment Act.

The DEA and the DEA tells us and makes it a law that employers cannot discriminate or harass employees if they are over the age of 40 by giving better or preferential treatment to younger employees.

>> So employees over the age of 40 are actually protected from certain types of adverse employment actions like well discrimination, harassment things like you can't be terminated because you are over 40 or over 40 and the protection isn't necessarily argue over the age of 40 and been terminated.

The question is have you been terminated because of your age and have you been replaced by someone younger?

>> So this is designed to help protect those employees who are more than 40 years old.

>> Again, that is a magic age under the statute and to help them stay in the job force and help employers retain those employees.

>> Well, the thing is by the time you reach 40 you're probably a better employee because you have some experience but employers don't always see that.

>> Have you had to deal with discrimination cases at all?

>> No, not frankly not not too much.

>> What would be typical discrimination that people might bring before an attorney is it I'm happy to answer that for you if you'd like to go.

>> So the types of discrimination that people view where people have I mean termination of course is the most severe type of adverse action that someone can suffer.

>> However, there's also lack of promotion if you're finding that you have the experience and you are in the same job classification sometimes there are questions about whether or not they're promoting a younger employer.

Maybe the younger employer isn't at the same salary level and so the employer may be thinking they're protecting the pocketbook so to speak, but that older employee probably has more experience, more knowledge and probably should be protected sometimes there are little things that employers may do hey, we need to get younger in the workforce.

Those types of things are sometimes keywords that employees should be on the lookout just to make sure that they're being treated now in northeast Indiana I will tell you it's very seldom that we have any sort of direct or adverse action where you know it's because of your age and employers may not even think about this when they make some employment decisions but those are the types of typical adverse job actions.

You know, people talk about hostile work environment a lot when it comes to employment.

A hostile work employment excuse me a hostile work environment doesn't just mean that it's no fun to work.

It has to be designed and it has to be based on a protected classification.

So the types of discrimination are out there.

You can look online and find all those but it really takes an adverse job action and sometimes that can just be as limited as hey I applied for a promotion and didn't get it.

Now that doesn't necessarily mean that the employer didn't have a legitimate business reason why they made that decision because an employer is always entitled to make a business decision.

Sure.

It just can't be based on a protected classification.

And for our audience we're talking about LIFE Ahead and older workers that may be an age issue.

>> Do they have to tell the employee why they didn't choose them for the promotion or for a particular job?

>> Do they owe them that courtesy or not?

Well, the question is are they legally required versus do they as a courtesy?

Sure.

I would suggest that any employer probably would want to explain to their workforce why they've made a decision and that would be beneficial because there's probably a reason why they made that decision that's not based upon some protected class vacation.

>> Got it.

And the employee should want to know that I find in my practice that it's an absence of communication between an employer and employee that really causes a breakdown in the discussion or a breakdown in the circumstance where one person says well that's it, I'm leaving or the employer has to make a decision that you need to go.

>> So communication is very important when it comes to employment and it's a tricky thing when you're working or something that's an emotional issue.

>> I have a question for you.

I that you know a lot about Medicaid and in estate planning.

How does you age or working as an older employee how does that what does that have to do with estate planning or Medicaid anything?

>> Yeah, that will affect that in a couple of different areas.

It will affect the overall estate planning because presumably you'll end up with more money when it's time to retire.

So you have more to plan for also in terms of Social Security and Medicaid they have caps on income in order to continue to receive those benefits.

So that's something to keep an eye on if a person is receiving Social Security and they're under retirement age, I think the maximum they can make is about twenty two thousand dollars before their Social Security will will start to be pulled back and once they reach retirement age right now it's twenty twenty four sixty seven years old there is no limit on income you can make if you're over that age.

But it's that transition period when a person's receiving Social Security but hasn't reached that full retirement age yet.

>> Well speaking of full retirement age and we've been talking about 40 being the magic number where maybe you are considered would you be considered an older employee by the law but by the law?

>> Yes, a forty forty is the floor.

>> If you are thirty nine years old you're not protected by the a.D.A.

>> OK now how does one find out about that?

I mean let's say that some of you watching are working and have moved past that magic number of forty.

>> How do you know who to get a hold of or how to find somebody to help you make this transition or help you understand the law?

>> Sure.

And there's a couple of aspects to that.

If an employee believes that they've suffered an adverse job action, they they haven't been given the promotion that they think they were entitled to or they've been terminated from their employment.

There are two things that an employee can do.

The first thing is always look at your employment handbook, always look at the policies of your employer and know who you need to complain to internally.

Most of the time there's a human resource director and if you have a concern that you've been discriminated or harassed based upon a protected class, you'll want to make sure that that human resource department is aware of it.

If you don't report that to the Human Resource Department you could always seek the advice of an attorney and ask the attorney whether or not you think you have an actionable claim.

And then the last thing you do and it's often a requirement is there are agencies both state and federal who protect employees who have been harassed and discriminated and I say protect.

I mean the those agencies will investigate claims.

So in Fort Wayne we're lucky enough to have what's been called the Fort Wayne Metropolitan Human Relations Commission say that again that's a big how about I just say Metro Metro Metro and Metro is a local agency that investigates charges of discrimination or harassment.

Now they do not advocate on behalf of any employee but they will take your concern and they may investigate your claim if you believe that you've been discriminated against, people go to them directly or they skip their employer.

>> They may I would suggest though for anyone if this is true for employers and employees, both an employer should have a good policy and that policy should say if employees believe that they've been mistreated for whatever reason, please come and tell H.R.

because an employer they can't guess or read the mind of an employee.

OK, so unless that employee tells the employer the employer can't take a reasonable step to protect that employee or to investigate.

>> But you know, I've heard people say that they're hesitant to go to H.R.

Human Resources if they have an issue or fear that they're discriminated against because they're thinking that the H.R.

person is going to be with the employer, they're going to be the with the administration in terms of their view of things.

>> We'll take their side.

What do you think?

Well, I can't tell you that a H.R.

representative is not going to look and investigate from the standpoint of did we make a proper decision on behalf of the employer?

But again, there may be a policy and if the employer is not aware that the employee feels that they've been discriminated against the employer's only job under the ACA or other employment protection statutes is to conduct a reasonable investigation and take appropriate action.

>> Got and if you as the employee don't tell the employer then the employer may not know and may not be able to take that step.

And then when you do go and complain to Metro or the EEOC down in Annapolis they will look at it and say did you follow the internal policies and if you didn't Metro in the EEOC they say well even if there was discrimination you don't have a claim because you didn't follow the reasonable as they did starting where you were first.

>> Correct try we were talking a little while go about signing releases that often if you're terminated you're asked to sign a release.

What's that all about?

What will a release consist of and do you have to sign it?

>> Yeah well when a person is asked to leave no longer have their lawyer work there.

>> Yes.

They're often presented with a release or an agreement.

>> It's basically a contract that says that the employee that's leaving will maybe do a number of things.

Maybe he won't share information and maybe won't publicly disparage the organization their employer and there may be some other things but in exchange for that they'll receive severance package and so like all contracts it's a give and take.

Should I think it's sometimes employers might present it in such a way as it's here sign this on your way out the door and not really explain it to the employee.

So it's good to any time you sign something especially in an adversarial situation like that that you know what you're signing and if you have any questions, talk to an attorney .

>> Would you ask the the boss then or whomever is presenting you with that release and asking you to sign it?

Would you ask them for a certain time period so that you have an opportunity to read it closely and get legal advice?

>> Yeah, I think that's very reasonable.

>> They may you know is that customary?

You know, Ted may have a good answer for that.

>> I'm not you think and more and more we're seeing even for employees under the age of 40 that the employer will not just terminate an employee on Friday and say sign this on your way out the door because it doesn't give the employee time to consider it for workers over the age of 40 there's a special law that requires the employer to give the employee twenty one days to consider a severance package.

>> Oh OK. And so we don't have to sign it so you don't have to sign it right away because if you aren't given that twenty one days the release the promise not to sue your employer is not enforceable.

They have to give you twenty one days again but that's only for workers over the age of 40.

However many employers simply incorporate that for all severance now when we talk about severance and releases like that we advise Troy and my firm and myself.

We advise both employees and employers and we always advise the employer to get a release if you're going to pay a severance to an employee.

So just because the employer may offer a severance that doesn't necessarily mean that the employer believes they've done something wrong and employee may have been a dedicated employee for a long time and they want to reward that performance.

Oh OK.

But even if that's true and this is supposed to be a reward, we always advise our clients make sure you get something back from the employee and that is usually a release Godet All right.

So what happens let's say that you've been asked to to leave your job for whatever reason and your bosses ask you to sign a release saying things like you mentioned, Troy, that you won't say anything bad about that company or whatever whatever is in that release form.

What if you do break that?

>> Can they sue you?

How does that work?

Well, that's going to depend on the terms of the release.

OK, some more sophisticated employers and some more investigated employees who have been around who were maybe at a sea level a president or a high level vice president.

They're going to understand that they're going to be some terms and conditions generally a release agreement or a severance package is deemed to be confidential and so they're going to want to have you keep that information confidential.

There may be a reason why you as a departing employee are getting more than someone else and they the employer wouldn't want to create the expectation on behalf of any employee that they're going to get severance, particularly if there's a difference between terminating somebody because business is down versus terminating something someone because they've done something wrong to hurt the business guy.

So the employer may want to keep that confidential and generally they do.

And so if there's a confidentiality provision, the ask for some protection to make sure that that agreemnt is kept confidential and so that could be a return of the severance.

That could be if you're getting paid over a period of time that the employer says the release is still binding but because you violated the confidentiality provision, we don't have to continue to pay Dinmore maybe you had some company secrets or whatever and you shared those with somebody else or with the next employer that you have.

>> So that might be against that in talking about estate planning and and Medicaid can you take let's say you have a four one K with a business and you're leaving that business.

>> Do you take that with you or do you start cashing in everything?

How does all that work with retirement issues?

>> Yeah, you can very much take that with you and you can transfer that over to a new employer or case of an IRA.

You can take that to a financial adviser and have them manage it so you're not locked in to that employer and it's a good idea to know what you have and since you don't have a relationship with them anymore to move that along to someone else it's is kind of amazing how many times people will forget that they had some they have it and they leave and it just sort of gets lost in the shuffle and then we're finding it on Indiana unclaimed or something like that's where some of those things come from.

All right.

Now tell me everybody looks at that right?

Everybody thinks oh maybe you know, maybe today's the day.

>> Yeah.

Maybe I have a great aunt that will do me a lake house or something and I just don't know about it and well I what are some of the biggest issues that you find, Ted, if you're working with somebody that thinks they've been discriminated against, let's say that the employer tells you you've been doing a fine job but we're moving into a new technology or a new way of doing things and so we think we need to hire somebody.

They won't say the words younger but they might say that's more up to date.

>> How do you deal with that?

Well, a lot of that is going to pbe fact sensitive based upon the circumstance that every employee finds themselves in.

And so you have to look at it again this goes back to the earlier statement that you and I were having where communication's very important right older workers now know how to use computers.

They know how to use technology especially if they're Japanese technolog based.

>> They know how to use those vital programs so employees can be trained employees can be reeducated whatever term we want to use employees more and more are susceptible and capable of taking on new challenges.

We see people who are now in a second career, people who've been in the military and now they're coming back.

Those people are highly adaptable and I think that statistics are showing that more and more the older workforce is capable of taking on more and more information and doing new things than maybe they thought ten or twenty years ago right now.

>> All right.

Let's talk about let's say that you have been released from some job but you're an older worker will say again using your number of or over or even sixty how do you go about finding a new job?

pWhat would you look for , Troy and and what should a resume include that might convince people you're still valuable?

>> Yeah, well and I think a resume should accentuate the experience and sure.

>> And that's something that cannot be bought cannot be taught and if you've been there you've done that.

I would think that would be very attractive to an employer.

>> I think you would want to play down the age ArchCity who are legally required to tell them your age.

Absolutely not.

Ha ha.

That's a good they're not even supposed to ask a good consideration, are they the person interviewing you for the new job can't ask you your age, right?

>> Correc.

Legally correct.

OK, and you aren't required legally to tell them up front correct.

>> Right during the interview process generally doesn't come up but everybody knows who's filled out a job application that at some point there's a little statement that says date of birth.

>> Now usually that's going to be very important at the hiring time once you've hired because there are benefits and we have things like health insurance and health insurance providers need to know that because de testability, the health insurance company can use that information.

But the employer yeah, they need to but the employer should not be basing their decisions based upon well my health insurance premiums are going up.

There's a special law talking about that so you can get that information once the job offer has been made and once the application process goes into the hiring process because a number of tax forms, a number of forms will require that date of birth so well once that's there it remains confidential but it can be used for those particular forms.

>> But as they're let's say the person that's interviewing you, the human resources or whomever at the new new place of employment, they might be able to try to figure out an age based on your resume like the years you went to college or how many years you worked there.

>> They might be able to get a ballpark but they can't discriminate again, right?

Well, they're not supposed to discriminate or make a decision based upon that factor of age.

OK, so one thing you can do if you're looking for jobs, the other thing is relevant job experience is important as Troy was saying.

You want to make sure that your resume is full and robust but at the same time knowing that I want solid suits that Chelsea's probably isn't going to get me a job at my next Lauffer.

>> I'm not looking well I don't want to I think that's pretty admirable but we have it.

>> But I mean you want to make sure when you're looking at your resume to keep that that resonates with the relevant job experience, not necessarily something you've done 30 years ago that may not be real.

>> So how many years back would you say a person should go and doing their resume?

Well, usually when you're talking about that you're looking at how many jobs maybe not a time period a year but you want to make sure that you're putting in relevant experience for the last two or three jobs so your prospective employer can see that when are you this is a difficult question.

>> Oh, wait a minute.

We have a call coming in here from a viewer.

Let's take that first Leonard called in and he says What about if your employee says you are overqualified?

>> Is that a form of discrimination that's a good question.

>> What do you think?

Well, I would suggest that it's going to depend upon the job because most employers have an idea of the type of person they are looking for for that position.

But if somebody has an MBA, let's say the employer may not want to hire a person with an MBA who may have higher salary demands for a simple bookkeeping OK, OK where you may only need a college degree or maybe even an associate's degree.

Yes.

So the simple identification that someone is overqualified isn't one of those terms that we normally think about.

It could be based upon the factual situation but but normally the employer is going to be looking for an employee with certain qualifications and if someone is overqualified or overqualified.

>> OK, anything to add to that?

At what point does somebody become overqualified or to to qualify for a job?

I don't know how to explain that.

>> I think Ted answered it perfectly and he gave a great example.

There are a number of reasons why I would think an employer would be a little hesitant to hire someone who typically wouldn't have that type of job because they have a higher education or or more experience .

>> Yeah, they might think they would not be happy in this job anyway and they'll probably want to leave within a year.

>> OK, give me some closing thoughts we have one minute.

Well when you're over the age of 40 you have a number of things to consider that someone first joining the workforce just doesn't you have issues as Troyes talked about about your 401.

>> You have other benefits.

You have health insurance.

You have issues in regard to are you going to be covered by a COBRA continuation or is it time for you and your family to start considering Medicaid?

Yeah, if I am an employee and I'm going on Medicaid and I have always covered my dependent ,there may be issues about whether they are qualified my spouse for Medicaid or whether she needs to stay on my health insurance.

So there's a number of issues that older workers have to consider that younger workers on't don't have to and that's just because of the stage of our life .

And so we want to make sure that those retiremnt benefits are there, those health insurance we have the coverage we need to get the care and to maintain the style of life that we're used to.

>> I think a younger employer's employees don't think about those things and when they have a company meeting and talk about four one KS and this and that and they're like what's that?

You know, I don't care about that.

You know, just as long as I get out on Fridays at five o'clock, you know you never know.

Thank you both for sharing such valuable information with our viewers.

>> I really appreciate it.

Thank you for having us and I think you all do too.

And in fact next Wednesday night we'll have another topic right here at Seven Thirty on LIFE Ahead.

Meanwhile, you stay healthy and happy and enjoy your job if you have one