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Avoiding Three Common Mistakes Made By Employers When Terminating Employees (Part 1 of 3)

This post (the first of three) discusses common errors made by employers when terminating employees, all of which can be easily avoided.

Mistake No. 1: Offering an Older Employee a “Retirement” Package

Well intentioned employers sometimes are tempted to characterize a performance-based, involuntary termination of an older employee as a “retirement.” However, the mere mention of the word “retirement” in connection with a termination decision, even when offering an enhanced severance package, can lead to liability under the Age Discrimination in Employment Act (the “ADEA”).

Interestingly, the original version of the ADEA excluded from coverage employees who were 70 years old or older, as well as employees who were under the age of 40. Accordingly, employers could force employees to retire at age 70 under the original version of the ADEA without facing liability. However, the ADEA was amended in 1986 to remove the exclusion for employees who were 70

Reducing Exposure to Attorneys’ Fees Awards Through Use of Rule 68 Offers of Judgment (Part 1 of 2)

April 12, 2017

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Sooner or later, a defense attorney will find himself or herself defending an employment lawsuit involving a clear statutory violation or a very bad fact pattern that almost surely will result in a jury verdict in favor of the plaintiff-employee. In these situations, the obvious strategy is to resolve the lawsuit through a settlement. This is because the value of the claim and the defendant-employer’s corresponding exposure continue to increase throughout the course of litigation in the form of back pay accrual and both parties’ attorneys’ fees, since the vast majority of federal and state employment laws contain an attorney fee-shifting provision requiring the defendant to pay a successful plaintiff’s attorneys’ fees (in addition, of course, to the defendant-employer’s contractual obligation to pay its own attorneys’ fees). And although a prevailing plaintiff is entitled to his/her costs and attorneys’ fees under these statutes, a successful defendant is entitled only to

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