Forced Retirement?

February 1, 2009

We have had an employee work for us for 16 years. We have never been happy with her performance. She is about 62 years old. We have been paying her a good salary and benefits, including a retirement plan. Are there any incentives that we can give her to get her to retire, so that we can hire someone else, without running into legal trouble? We were never happy with her performance. But we never documented anything on paper. We just put up with her. Now we are totally tired of her.

Question: We have had an employee work for us for 16 years. We have never been happy with her performance. She is about 62 years old. We have been paying her a good salary and benefits, including a retirement plan. Are there any incentives that we can give her to get her to retire, so that we can hire someone else, without running into legal trouble?

We were never happy with her performance. But we never documented anything on paper. We just put up with her. Now we are totally tired of her.

Answer: You can’t fire her because she is old. You can fire at will otherwise. What you need to guard against is her perceiving the firing as being age-based.

Related to this, it may be worth your time to engage a lawyer on this issue to make sure you proceed correctly.

If you do not intend to fire her, you can offer incentives to resign. For example, offering a percentage of salary or health insurance for the next several years. I’d initiate that conversation by asking what her needs and concerns are rather than offering things straight out. It’s a negotiation.

No, you can’t force her to retire unless her contract stipulates that already and then all your contracts should stipulate that.

And why waste three more years anyway?

I think the group needs to bite the bullet and take the heat for its lack of documentation and action over the past 16 years. Get a professional adviser involved and see what you can do to get rid of her now.