Out-Law News

Need to attract over-55s talent? A US perspective

US lawyer, Todd Lebowitz tells HRNews about some of the legal barriers to attracting and retaining over-55s in the states

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  • Transcript

    Where have all the older workers gone and will they ever come back? That was the FT’s headline in a piece by columnist Pilita Clark highlighting the advantages of experienced older workers, questioning where they have all gone and asking how to get them back. And it’s a global problem. We’ll ask an American lawyer for the US perspective.

    The research cited by the FT shows nearly 70 per cent of the 5m people who left work in the US during the pandemic were older than 55. In the  UK, the employment rate of over-50s fell by twice that of those aged between 25 and 49 years in 2020. 

    Why has that happened? Covid is a big factor. Restrictive working practices is another. The net result is the over 50s have left the workforce in their droves. These are people at the peak of their powers, experienced, highly skilled, with a lot to offer, still.  Nick Gallimore, director of innovation at Advanced, a UK business software group, points to ‘a skills drain’ which is hitting business hard. He says companies need to think more about how to attract and retain the over 50s. 

    If you are a UK business with a presence in the US trying to retain or attract the over 50s you’ll need to understand the employment law framework in the states. Todd Lebowitz is an employment lawyer at Baker Hostetler in Cleveland Ohio and he joined me by video-link to discuss the issue. I started by asking about age discrimination and whether that a barrier to recruitment of this age group:

    Todd Lebowitz: “It’s an issue that, naturally, under US law you would think about that a lot because you cannot discriminate on the basis of age and under most US laws, that works both ways. So, if you're looking at race, or religion, or other protected classes, generally you can't discriminate in either direction, for the majority, or for the minority. Age discrimination under US law is a little bit different. Under the age discrimination laws in the US, you can favour older workers. The law protects people over 40, it does not protect people under 40, and so if you want to have a hiring policy that favours older workers in the US, it would be a bit unconventional, but you could do it, at least under federal law. I'm not aware of any states that would hold differently, because the states are allowed to have their own additional laws, but generally in the US you can do that.”

    Joe Glavina: “So how does that translate into practice? What is the impact of that in the recruitment market?”

    Todd Lebowitz: “So you could encourage older workers to apply, and there's different ways you could do that. You could do that by advertising in places where people of a certain demographic are more likely to look, you could advertise with places where people who are otherwise retired might be more likely to look, you can express a preference for 20, or more, years of experience, which obviously is going to exclude some younger people. All of that would be okay under US law.”

    Joe Glavina: “Can we move on to home-working in the US. Is that dynamic affecting recruitment?”

    Todd Lebowitz: “Yes, it is. It’s interesting. When companies expand the scope of where they're looking, on one hand they vastly expand the talent pool, which is wonderful. On the other hand, the way things are set up in the US, we've got federal law and then we also have state law and local law, and so if you're a company based in one state and you hire somebody in another state, that employee is going to be subject to the laws of the employee’s home state, which may be fine, but it may impose some additional bookkeeping requirements in terms of you've got to do the proper tax withholding for that state, there here may be additional leave laws, or paid sick leave laws, that apply to employees who are working in a particular state. Now, these aren't issues that are unique to people over 55 but they are considerations when you're looking to hire somebody in a different area. As for working from home specifically, it's probably a bit of a better situation for people over 55 because you're probably not worried about little kids in the background. One thing that we often have to remind employers is to tell their employees that working from home is not a substitute for childcare. That's not that's probably not an issue with the over 55s set. It's probably more likely that people who are a little older are going to be more established and have a better working environment at home. So, generally the work from home issue with the over 55s can be pretty good, it can be a pretty advantageous demographic to hire in.”

    Joe Glavina: “A follow up question on that, Todd. Here in the UK there's been a big move towards home working, staff tend to like it, they want it, and there's a war for talent. So, companies that are happy with that, and are offering that,  are favoured in the market. Is that mirrored in the US?” 

    Todd Lebowitz: “It is. There’s a big competitive advantage for companies who are allowing work from home or a hybrid environment. We're seeing companies that demand everybody come back to work are having a hard time retaining people. So, it's definitely a competitive issue here in the US as well.”

    Joe Glavina: “I’d like to move on to ask about background checks, Todd. How does it work in the states?”   

    Todd Lebowitz: “Yes, so the issue here is really not unique to over 55 people, but background checks in the US, there are a lot of laws govern what can be done and how it can be done. You’ve got a basic set of laws, and the Fair Credit Reporting Act which governs not just credit, but regular criminal background checks, employment reference checks, things like that as well, in terms of how it has to be done, what disclosures have to be made, what the authorisation has to look like. Then, complicating things in the US is you have a matrix of state and local laws that impose additional requirements, sometimes with additional disclosures, sometimes with what we call ‘ban the box’ laws which restrict when you can start asking questions about criminal history, or when you can do a background check. In a lot of states you can't do that until after a conditional offer of employment has been made. In other states, you can do a background check before you decide whether to make a conditional offer. So, that's an issue that in the US has gotten a lot of attention and is something that any company doing hiring in the US is going to have to be aware of as part of that hiring and offer process.”

    It’s worth saying that Todd runs a very popular, award-winning, blog called ‘Who is my Employee’ which we highly recommend. It explores, through a US lens, issues related to independent contractor misclassification and joint employment, with plenty of valuable information about risks, tips, trends, and developments. We’ve put a link to that in the transcript of this programme.

    - Link to blog by Todd Lebowitz: ‘Who is my Employee?’


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