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How Should I Handle Decreased Productivity With Older Workers?

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Question: When you hire an older person, what might happen as their productivity become less? Is it fine to pre-establish a decrease in pay? Or, let the inevitable happen and grit your teeth as they slow down? Thanks for any words of wisdom.

Answer: Let’s start by answering the question with a question: What do you do when anyone you’ve hired becomes less productive? Here’s the point: You should hire without regard to the applicant being “older” and make the hiring decision based on needs of the business, applicant skills, and other relevant, non-age based factors (other than of course you shouldn’t hire in violation of child labor laws). Likewise, how much you pay an employee should be based on reasons other than age. Pay can be based on productivity, so long as productivity standards are applied consistently to employees of all ages. Federal age discrimination law protects workers age 40 and over, so using age as a factor in deciding pay (or in making most workplace decisions) is bound to get an employer in trouble.

This response is intended for general informational purposes only and should not be construed as legal advice or a legal opinion, nor is this column a substitute for formal legal assistance. For help with particular legal needs, members are invited to consult with ACCA’s LegalTools Counsel, Brooke Duncan III of Adams and Reese LLP. Mr. Duncan can be reached at 504-585-0220 or by email at

Brooke Duncan

Posted In: ACCA Now, Legal

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