What do we do when employee changes his mind about retiring?

A long-term employee, age 65, tells his manager he plans to retire in 12 to 18 months and participates in training his replacement to accommodate his retirement. Near the end of 18 months he tells his boss he's changed his mind and wants to continue in his job. Can his manager say, sorry, we've made significant business plans and changes based on your previous decision and you'll have to retire or accept some other job within the Company, if one is available? Or, must his manager accede to his request, since a person can't be "forced" to retire.

Rita Risser's response:

From a strictly business perspective, who is the best person for the job -- the experienced employee, or the new trainee? If you don't have a legitimate business reason for preferring the new hire over the experienced employee, then go no further. Keep the man with experience, and move the trainee into another position, or lay him off due to job elimination.

If the new trainee for some reason is preferable to keep from a business perspective, the issue is extremely gray. I am not aware of a case like this, but here are some thoughts based on general principles.

You are right that people can't be forced to retire. You can't discriminate on the basis of age. One question is whether in the past you have had younger employees who decided to quit and then changed their minds. How did you handle those situations? If you let them go anyway, that would tend to show that letting this person go is not discriminatory. If you let him go, however, do not force him to retire. Let him go as you did the other people. It is up to him to request retirement.

If you have not had such situations in the past, or even if you have, the safest course of action is not to let him go. Even if he doesn't have an age claim, he might have a suit for wrongful termination based on the covenant of good faith and fair dealing. By keeping him in his current job, you avoid any such claim. If he is not as qualified as the new trainee, you might be able to transfer him to a lesser job without liability.

To summarize: The safest course of action is to keep him in his current job and lay off or transfer the new trainee. Second best, if you can prove he is not as good as the new trainee, is to transfer the experienced employee to another job. Third, if the experienced employee is not qualified for any job in the company and you have let go younger employees in similar situations in the past, you may be able to terminate him. However, since on its face any adverse action looks like it is based on age, I advise the first course of action.

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