You have provided us with information that you employ a long-term (30 year) chronically underperforming Caucasian 63 year old male employee and want to finally get rid of and replace with a rock-star recent hire (6 months). The recent hire is a 22 year old female Hispanic employee who has been doing many of his duties already. You have asked how do you prevent him from suing you.
While anyone can file a lawsuit, obtaining a legally enforceable release of claims is the only way to fully protect the employer. The long term employee who is a member of at least one protected class is a common call we receive because the client recognizes the risk of terminating a long-term older employee and replacing him/her with a younger employee that may be attacked as age discrimination exposing them to significant damages because of the length of service and the likelihood of finding a similar job earning the same high income and benefits is minimal.
Often times, the challenge for employers is that even though everyone believes the long-term employee has chronically underperformed, the personnel file and other evidence suggest otherwise. Either the file is empty or it shows raises, bonuses, and either fails to properly document and counsel on all of the performance issues, or three inches of write-ups all concluding with further violations will result in disciplinary action, up to and including, termination – for the last 30 years.
Typically, the older employees lack technical skills, are resistant to change, and become the butt of jokes around the office that come back to haunt the employer. When we ask what is the straw that broke the camel’s back that has led you to this decision, the straw is insignificant in comparison to all of the past issues which were essentially ignored.
After analyzing exposure, employers often opt to offer severance packages to the affected long term employee in these situations. Because the employee is over 40, a waiver of the federal age discrimination claims require that the employee be provided with a set number of days to consider the agreement, and an additional 7 days to revoke it following execution. The manner in which a severance package is offered, the terms, how, when, where, the persons involved, and the meeting itself are all critically important in achieving resolution.