A recent report released by the Department of Labor estimates that by 2016, approximately 33 percent of the total workforce in the United States will be older than 50. By 2050, the same report suggests that 19 percent of the U.S. workforce will be 65 or older. As the average age of the workforce continues to increase to an all-time high, employers are often confronted with the need to identify and train future business leaders who will replace their most experienced and knowledgeable employees when they decide to move on to other business endeavors, become ill or simply retire. When considering business succession-planning strategies, employers may face a variety of exposures, including potential liability pursuant to the Age Discrimination in Employment Act, if the information gathering and planning process are not approached in the right way.

Many of us recognize the time-honored saying, "It is not what you say, it is how you say it." Employers considering business succession plans are now realizing that it is both "what you say" and "how you say it" that are vital. As an example, in Romantine v. CH2M Hill Engineers, 2010 U.S. Dist. LEXIS 136011 (W.D. Pa. 2010), the court denied summary judgment and permitted the plaintiff’s age discrimination claims to proceed to trial following the plaintiff’s layoff.

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