We have recently been exploring employment laws that only kick in once your cannabis company employs a certain number of employees. In the first part of this series, we discussed California’s sexual harassment policy requirements and last week we discussed federal and state leave requirements. This week we will look at age discrimination laws.
Federal and state age discrimination laws vary greatly, so it is important to know both the federal requirements and the state requirements. Both will apply to your cannabis business. The Federal Age Discrimination in Employment Act (ADEA) only applies to employers who employ at least 20 employees. The ADEA only protects employees over the age of 40. Under the ADEA, employers are prohibited from discriminating against employees in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, benefits, and any other term or condition of employment.
Employment claims under the ADEA typically arise when younger employees are frequently promoted over older employees or when an employee is terminated and replaced by a younger person for the same position. So if your cannabis business has at least 20 employees and some of those employees are over the age of 40, be careful!
State Age Discrimination Laws
Oregon’s anti-discrimination statute is one of the broadest in the countries. Unlike the federal ADEA, the Oregon statute applies to any employer who employs at least one person. Further, the Oregon statute protects all employees 18 and over. Like the federal ADEA, the Oregon act prohibits employers from taking adverse employment actions against employees based on their age. Employers are allowed to set bona fide occupational qualifications necessary for the normal operation of the employer’s business. An example of a lawful bona fide occupational qualification would be cannabis companies refusing to hire anyone under 21.
As previously discussed, Oregon recently passed equal pay legislation. The equal pay legislation extends to pay discrepancies based on age. Employees performing substantially similar work must be paid the same, regardless of their age, unless one of the exceptions described in the act is met. Age is likely to play a big role in the equal pay legislation since older employees likely have more experience and earn more than new hires in the same position.
Washington’s anti-discrimination statute has similar parameters to the federal ADEA. The Washington statute applies only to employers with at least eight employees and prohibits discrimination against employees aged 40 and over. Like the ADEA, all employers, including cannabis employers, are prohibiting from taking an adverse employment action against an employee because of that employees age.
California prohibits employers with at least five employees from discriminating against employees aged 40 and over. Like the other states, employers are prohibited from discriminating against employees in any aspect of employment, including, hiring, firing, pay, job assignments, promotions, layoff, training, benefits, and any other term or condition of employment.
Age discrimination lawsuits can come with hefty awards. It is important to know the local and federal statutes and even more important to include an anti-age discrimination statement if your employee handbook. Best bets are to review pay practices, hiring, promoting, and termination practices to ensure you are complying with both federal and state requirements. Often times an outside expert can provide a neutral analysis of your practices and how to improve in weak areas.