Managing the Boomer Generation of Workers

Performance management can be legally tricky for employers as more Baby Boomers delay retirement. This year marks when the largest generation in the workforce starts turning 65. Many boomers are delaying retirement, creating both an opportunity and a challenge for employers. Employers with older employees who are not meeting required standards found managing performance especially challenging after human rights laws were changed to ban mandatory retirement.

By Nicole Byres / February 29, 2012

Performance management can be legally tricky for employers as more Baby Boomers delay retirement.

This year marks when the largest generation in the workforce starts turning 65. Many boomers are delaying retirement, creating both an opportunity and a challenge for employers. Employers with older employees who are not meeting required standards found managing performance especially challenging after human rights laws were changed to ban mandatory retirement.

In January 2008, B.C.’s Human Rights Code was amended to eliminate the upper age limit to age discrimination. Other provinces have also implemented such laws, and similar changes for federally regulated employers will take effect in December 2012.

There were two immediate consequences of banning mandatory retirement: Employers lost the ability to predict when their employees would retire, and they can no longer ”weed out” underperforming employees by forcing them to retire. New strategies are now needed to deal with both issues.

Encouraging Retirement

For businesses trying to plan for their human resources needs, the first challenge is to get their employees to start planning how and when they will wind down their careers. Employers can encourage the process by offering retirement planning seminars to assist employees in understanding their specific retirement lifestyle and income needs. Then, armed with this information, employees are more willing to make decisions regarding their retirement.

Employers who want to actively encourage their older work force to retire (perhaps for safety or productivity reasons) will want to also consider providing incentives such as phased-in retirement, financial bonuses and other benefits that are conditional on an agreed-to retirement date. And, as noted in my last blog, any agreements to phase in retirement or change work responsibilities should be documented in writing.

Managing Performance

Managing the performance of older workers will be a challenge if there are no regular performance review processes already in place. Human rights laws prohibit age-based discrimination so employers won’t be able to institute performance management measures only on their older employees.

Besides having performance review programs applicable to all employees, it is also important the process be transparent so employees understand that standards are expected for everyone. Performance improvement plans should be documented, time should be allowed for the employee to meet the standards required and the consequences of not meeting those standards should be clear.

Where physical attributes (such as strength or fitness) are important to the performance of the work in a safe and efficient manner, employers should ensure such criteria are truly connected to the various positions. Employers should also ensure there are objective ways to measure individual capabilities. Some performance problems could be due to a disability or illness, which employers have to legally accommodate, provided they can do so without undue hardship.

Employers also have legal obligations to accommodate reasonable, age-based limitations on performance. An explanation of the accommodation process is beyond the scope of this article, but suffice to say the investigation and implementation of reasonable accommodations for a disabled employee must be done carefully to avoid human rights claims.

There are significant benefits associated with an experienced work force,. However, our human rights laws create some challenges for employers trying to plan for succession or managing the performance of those workers. Pro-actively implementing some of the strategies discussed can better equip businesses to deal with such issues, while continuing to benefit from the skills and experience of their boomer employees.

This blog is written by Nicole Byres of Clark Wilson LLP and made available by BCBusiness to provide general information on employment law, and is not a substitute for competent legal advice from a lawyer licensed to practice in your jurisdiction. Neither the reading of this blog nor the sending of unsolicited comments or emails creates a lawyer-client relationship with the writer or Clark Wilson LLP.