WARN Act and Age Discrimination — Are Older Workers Protected When Layoffs Hit?
A WARN notice tells you a layoff is coming, not why you were chosen. That gap matters: the WARN Act and the laws against age discrimination do different jobs, and a layoff can satisfy one while violating the other. The WARN Act is a notice law: 60 days' warning before a plant closing or mass layoff. It never asks whether the selection was fair. The Age Discrimination in Employment Act (ADEA) is…
The WARN Act and Age Discrimination are two distinct laws that can impact older workers during layoffs. While the WARN Act requires a 60-day notice before a plant closing or mass layoff, it does not address the fairness of the selection process. On the other hand, the Age Discrimination in Employment Act (ADEA) protects workers aged 40 or older from discrimination by employers with 20 or more employees.
When an employer complies with the WARN Act and still selects older workers for layoff, it does not absolve them of age discrimination claims. Older workers can still file claims under either the WARN Act or the ADEA, or both. Disparate treatment involves direct evidence of age being a factor in the decision, while disparate impact focuses on neutral-sounding criteria that disproportionately affect older workers.
The Older Workers Benefit Protection Act (OWBPA) disclosure, mandated by the ADEA amendment, requires employers to provide written information about the decision-making process, eligibility factors, and ages of selected and unselected workers. If an employer fails to provide this disclosure, older workers have 45 days to consider the severance agreement before signing.
To protect their rights during the WARN notice period, older workers should refrain from signing severance waivers immediately, ask for the OWBPA disclosure if not provided, and file an EEOC charge within the appropriate deadlines if they believe age played a role in their layoff. The Layoff Atlas data highlights the number of WARN notices and reported workers in various states, with California leading the list.
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