Age-Based Benefits Can Lead to Trouble

If your company is offering employees benefits such as student loan assistance, child care services or even sports outings, could older workers cry foul?

"Employers should be careful when they're rolling out new benefits and using them to attract a younger generation," said Sarah Saint, an attorney at Brooks Pierce in Greensboro, N.C. The Age Discrimination in Employment Act prohibits employers from discriminating against workers over age 40, she noted. Generally, benefits should be age-neutral, although length of employee tenure can be considered. If employers provide unequal benefits based solely on age, however, they must justify that choice.

Fortunately, most benefits often associated with younger workers could be equally appealing to older employees, Saint noted, and employers shouldn't assume otherwise. For example:

• Student loan and tuition assistance. Many older workers are choosing to go back to school to hone existing skills or learn new ones, and they may take out loans to do so. They may also take out loans on behalf of their children or grandkids.
  

• Flexible work schedules. Flexibility isn't just for parents with young children. Older workers might value flexible hours to spend time with family or to ease into retirement.
  

• Child care benefits. Grandparents may be responsible for the care of their grandchildren—or may be helping their own children cover the cost of child care. Saint suggests referring to "caregiver benefits" or "kinship benefits" when relating benefits older workers might use for these purposes.
  

• Sporting activities. Employee softball or bowling teams are not just of interest to the young. However, employers offering highly physical sporting activities, such as marathons, should require that employees ask a doctor to sign off on their participation, regardless of their age.

"As long as the opportunities are offered across the board and have no impact on terms and conditions of employment, then it would be difficult to claim that there was some disparate impact on older workers generally," said Michael Elkins, founder and partner at MLE Law in Fort Lauderdale, Fla.

Build Benefits Based on Fairness

Employees' needs vary throughout their working lives, but not in the same way for all employees, said Bobbi Kloss, director of human capital management services at Benefit Advisors Network (BAN), a Cleveland-based consortium of health and welfare benefits brokers. Medical issues can affect the young and old, and employees may need help managing their finances regardless of age. Retirement planning isn't just for older workers; the earlier employees begin saving through their workplace plan, the more likely they are to enjoy a financially secure retirement.

Kloss advises against branding benefits as of special interest to younger or older workers. 

"Focusing on one class of employees is a shortsighted approach that may result in a perception of discrimination, even for well-meaning employers," she said.

Benefit plans should be made available equally to all employees, regardless of age or any other protected class, Elkins agreed.

"Additionally, taking advantage of the benefits should not impact terms and conditions of employment. If these two criteria are met, it would be hard for a group to successfully assert a claim for discrimination," he said.

[SHRM members-only how-to guide: How to Design an Employee Benefits Program]

Watch What You're Saying

Employers should make sure they're communicating benefit offerings to all employees and not just directing communications to specific groups, Saint recommended. 

"Make a special effort to ensure that employees who may not naturally seem to be interested still receive information and are invited to participate," she suggested. "Take time to meet with or explain to older workers how a particular benefit might be of value to them."

In most cases, employers are not attempting to be intentionally exclusive of any employee group. Consider not the intent, but the perception of your actions—or inaction—when offering and communicating about benefits.

Lin Grensing-Pophal is a freelance writer in Chippewa Falls, Wis.