Question: I am a regional manager for a fairly large office furniture manufacturer. I am planning on retiring in two months, when I reach age 65, and am planning to send a letter to my employer soon. I’m going to give them six weeks of notice, and ask to stay until my retirement date.

I’ve got three related questions:

1. Can they “terminate” me, and not accept my six weeks notice?
2. If so, can I collect unemployment?
3. Also, if they do let me go prior to my “retirement date,” couldn’t this be a case of illegal age discrimination?

         Bluffton, South Carolina

Answer: Dear Bill: 

a. An employer can always terminate an employee after that employee has given “notice,” and before the “notice time” has run out. It has always seemed wrong and nasty to me, but unless some employment agreement says otherwise, an employer can terminate a “resigned” employee before the “effective date” of the resignation. Some employers seem to do that; most do not. Those that do justify their doing so by claiming the departing employee may make other employees envious, or seek to take secrets or clients with them if they are allowed to stay the two weeks. I just never believed that it was anything other than childish spite. 

If an employer terminated an employee to prevent their achieving full retiree status, that might well be a violation of the federal E.R.I.S.A. law. A federal law called the Employee Retirement Income Security Act, or “E.R.I.S.A.,” protects employees from employers intentionally frustrating their retirement benefits. This is probably the reason I’ve never heard of someone announcing their retirement, as in your case, and then being fired just days or weeks before the official retirement date.

b. Chances are that an employee who has resigned, and is told by the employer to leave earlier, will not be able to collect unemployment insurance. If you apply for unemployment benefits, the issue before your state Unemployment Agency is “Why did the employment end?” If you resigned, then it ended at your decision. While it’s true that the “timing” of the end of employment was the employer’s decision, the decision of “why” it ended was yours. Unemployment almost surely will be denied.

c. Whether such a termination might be “age discrimination” would depend on showing facts, events and circumstances that establish the motivation was “age.” Many people think that a termination of an employee who is 65 years old “must be” age discrimination. That’s simply not true. In order to establish even a basic age discrimination case, the employee must show that age was the likely motivation. I don’t see any evidence of that in your letter, other than your age, which simply is not enough to support such a claim.

d. I can’t tell from your letter, but if you might not be able to collect your retirement benefits if you are terminated before your 65th birthday, I suggest you give retirement notice the day after your birthday. That should make sense, I’m sure.

Hope and trust that helps. Congratulations on your achieving retirement status. We wish you the very, very best in your next stage in life.

          Best, Al Sklover   

© 2011 Alan L. Sklover, All Rights Reserved.