If you can't force older employees to retire, how do you succession plan?

Employers face a legitimate—and growing—problem: if older employees aren't retiring on schedule (or at all), how do you plan for leadership transitions and future staffing needs without committing age discrimination?

The answer starts with recognizing that today's workforce doesn't retire the way it used to. Many employees expect to work past 65, often for financial reasons or because they want to stay active and engaged. Employers who build succession plans around outdated retirement assumptions are setting themselves up to fail.

What doesn't work (and is illegal) is pressure. You can't demote older employees, cut their pay, strip responsibilities, or make their jobs unpleasant in hopes they'll "choose" to retire. That’s not workforce planning—it's an age discrimination constructive discharge claim waiting to happen.

So, what does work?

Mangement discussion of an older worker's "retirement" as age discrimination

"When are you retiring?" That's not an employer's call to make.

Here's a rule that employers still manage to forget or ignore: the decision about when to retire belongs to the employee. Start nudging. Start hinting. Start asking. Start factoring it into employment decisions. And you're flirting with, if not outright committing, age discrimination.

An Ohio appellate court recently reinforced that lesson in Selzer v. Union Home Mortgage, reversing summary judgment for the employer and sending an age discrimination case back for trial.

Greg Selzer was a 64-year-old loan officer assistant. According to the record, his supervisors repeatedly pressed him about his retirement plans. Then came the email that mattered most: a vice president involved in the termination decision wrote that Selzer "keeps saying he will retire but hasn't." Another executive admitted that the purpose of that email was to justify why Selzer landed on the reduction-in-force list. And another employee confirmed that Selzer's proximity to retirement factored into the decision to terminate him.

The trial court bought the RIF explanation and dismissed the case. The court of appeals did not.

A plaintiff can prove age discrimination claims by direct or indirect evidence of discriminatory intent. In this case, the appellate court made clear that repeated inquiries about retirement when made by decision makers and tied to a termination decision qualify as direct evidence.

Yes, courts have said that merely using the word "retire" isn’t automatically discriminatory. But context matters. Here, the comments were frequent, made by supervisors, closely tied to the discharge, and—most damning—used as a justification for termination.

The employer argued it was just planning ahead. And believe me, I get it. When an employee eventually does retire, without proper succession planning, you could be caught off guard, scrambling to replace institutional knowledge and forced into a rushed and risky replacement decision. Courts, however, remain skeptical, and often recognize that "longevity" is just a proxy for age. Changing the label doesn't change the motive.

The takeaway for employers is simple:

Don't ask when employees plan to retire.
Don't speculate internally about retirement timelines.
And don't document retirement assumptions in RIF decisions.

Let employees retire when they choose. Support them in that decision. (I offer some tips on how to do that here.) Employees decide their retirement date. Employers don't get to decide for them—and those that try may find themselves staring down the barrel of an age discrimination lawsuit.

Can you spot the difference between coincidence and retaliation?

Have you heard about the small toy store owners in St. Paul, MN, who complained about ICE on their local news. They went on camera. They criticized ICE. Loudly. Publicly. Three hours later, two plainclothes ICE agents reportedly walked into the store and served a Notice of Inspection—an I-9 audit request.

And we're supposed to believe that timing is just… coincidence?

This is what retaliation looks like.

Clarity beats chaos: Why rescinding the EEOC’s harassment guidance is a mistake

Today at 10 a.m., the EEOC is scheduled to vote on whether to rescind its 2024 Enforcement Guidance on Harassment in the Workplace. 

If the Commission votes "yes," it will be a terrible result for employers — not because the Guidance was perfect, but because clarity beats chaos every time.

Dry January isn't a moral virtue or wellness trend. It's an economic gut punch.

Every January, like clockwork, Dry January comes roaring back.

If you want to take a month off drinking, good for you. Truly. Your body, your goals, your choice. No judgment, and it shouldn't be anyone else's business either.

But we also need to stop pretending Dry January is harmless.

For a whole lot of craft breweries, Dry January isn't a "challenge." It's a revenue problem. A jobs problem. A "can we make payroll in February" problem.

The 1st nominee for The Worst Employer of 2026 is … The Harassing, Retaliating, Evidence-Erasing Employer.

If you're looking for the blueprint for how to turn a workplace into a legal catastrophe and land on my Worst Employer list, look no further than Bryant v. C&M Defense Group. A jury just awarded Makita Bryant $5.5 million after what reads less like an HR failure and more like a master class in how to do everything wrong.

WIRTW #786: the 'propaganda' edition

What the hell is going on at the Department of Labor?

On January 10, the DOL posted this on X: "One Homeland. One People. One Heritage. Remember who you are, American."

Read that again. Slowly. If that doesn't make the hair on the back of your neck stand up, it should.

Myriad people immediately flagged the post as sounding eerily similar to one of the Nazi Party's central slogans — "Ein Volk, ein Reich, ein Führer" (one people, one realm, one leader). And they're not wrong to hear the echo. Even if you want to give the DOL every possible benefit of the doubt (you shouldn't), the vibe is unmistakable: nationalist propaganda, identity worship, and "blood and soil" messaging dressed up as patriotism.

And it wasn't even that subtle. The post was paired with a black-and-white montage of Revolutionary-era imagery and propaganda-style art — the kind of aesthetic authoritarian movements love because it sells nostalgia, certainty, obedience, and "purity" in one neat package.

Keep in mind, this is the Department of Labor. Its job is supposed to be enforcing wage-and-hour laws, protecting workplace safety, ensuring fair labor standards, and helping people get employed and trained. Not cranking out memes that wink at fascist tropes and flirt with Nazi-era rhetoric, slogans, and iconography.

This isn't happening in a vacuum. Union leaders and historians are sounding alarms about a "rhetorical shift towards white supremacy" within the federal government, with campaigns featuring idealized, mostly White male workers, "Americanism" over "globalism," and messaging designed to convince the "real Americans" that only people like them belong. Indeed, ICE is recruiting potential agents with the tagline, "We'll have our home again," a lyric tied to white nationalist groups.

When federal agencies start talking like this, it's not "patriotism." It's not an accident. It's propaganda — and it's the point.

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Here's what I read this week that you should read, too.

When “irreparable harm” isn’t: 8th Circuit slams brakes on a noncompete injunction

Employers love preliminary injunctions in restrictive covenant cases. And courts are supposed to grant them only in extraordinary circumstances.

The 8th Circuit just reminded everyone what "extraordinary" actually means.

Filing an EEOC charge doesn’t automatically buy an employee job immunity

Some believe that once an employee complains to the EEOC, discipline must stop. Supervisors must tread lightly. Performance problems must be ignored.

The 4th Circuit just reminded everyone that's not how Title VII works.

In Andrews v. DeJoy, the court affirmed summary judgment for the Postal Service on a retaliation claim brought by a clerk who had a long history of documented performance problems — both before and after she filed an EEOC complaint.

After loudly clashing with her supervisor and being escorted from the building by police, the employee, a clerk, filed an EEOC charge. After her post-suspension return to work, management continued documenting attendance issues, insubordination, and performance deficiencies, eventually issuing a notice of removal (later reduced to a suspension through arbitration).

She sued, claiming retaliation. She lost.

WIRTW #785: the 'sometimes a coffee cup is just a coffee cup' edition

Arsenal–Tottenham is one of the nastiest rivalries in sports. If you don't follow English football, think Eagles–Cowboys, Yankees–Red Sox, or Ohio State–Michigan, and then crank it up a notch or ten. London neighbors. More than a century of history and hatred.

Which is why it was a really, really big deal earlier this week when Thomas Frank, Tottenham's manager, was photographed holding a coffee cup with an Arsenal logo on it.

Social media lost its mind.

By all accounts, it was an accident. Spurs were away at Bournemouth. Arsenal had just played there over the weekend. Frank grabbed a cup from the away dressing room without noticing it belonged to his club's biggest rival. Asked about it, he responded the only way he could: "Of course I wouldn't do that. That would be really stupid." He added that with Spurs not playing well, it would be "absolutely stupid" for him to focus on something so trivial instead of the football.

Fair enough. Especially when the Arsenal sit 22 points clear at the top of the table and Spurs are mired in 14th.

Your workplace could have its own version of this moment. The trade show photo. The LinkedIn post. The Instagram story that lives forever in screenshots. There's your employee—company badge on—wearing the wrong quarter-zip. Holding a competitor's tote bag. Standing a little too close to a rival's booth. Marketing panics. Leadership fumes. Someone asks whether "this is a problem."

Start with the obvious question: Was it intentional? Most of the time, no. Swag is everywhere. People grab what's clean, warm, or nearby. That's not disloyalty. It's human.

Next question: Was there any real harm? Did a customer complain? Did a deal fall apart? Or did only internal pride take a hit? If the damage is theoretical or ego-based, you're already flirting with overreaction.

Then ask the most important question: What culture are you reinforcing? If you treat honest mistakes like acts of betrayal, employees learn to hide things—or to stop using judgment altogether. A quiet reminder about branding expectations is reasonable. Discipline usually isn't. Sure, if an employee is deliberately promoting a competitor or repeatedly ignoring guidance, that’s a different conversation. But earn that conclusion with facts, not outrage.

Not every rival logo is treason. Sometimes it's just the wrong cup in the wrong locker room. Sometimes a coffee cup is just a coffee cup.

And for the record…

Up the Arsenal! Come on you Gunners!

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Here's what I read this week that you should read, too.

4 solid steps to win your disability discrimination/reasonable accommodation case

The 6th Circuit just delivered an opinion that reinforces two lessons employers should already know: accommodations require clarity and documentation, and timecard falsification is a litigation killer.

Energy Harbor Nuclear Corp. reassigned a maintenance supervisor with nearly 30 years of service to 12-hour night shifts. He complained that the schedule was worsening his Type 2 diabetes, specifically that the night shift was "killing" him. Management told him to provide medical documentation if he needed an accommodation. Upon his presentation of a doctor's note, the company moved him to day shift as requested.

Then came the problem. The company audited his outage time entries against objective badge-swipe data from the plant's protected area. The audit revealed discrepancies in 21 of 26 entries, including 10 overstated by more than 30 minutes. Management interviewed him (with a witness present), reviewed security data, escalated the issue to HR, and a separate internal review team conducted its own investigation. The company fired him for falsifying time records.

He sued for disability discrimination, failure to accommodate, and retaliation.

The law is clear: protect your employees, not a problem customer

He's a regular. Spends money. Knows the beer list. The kind of customer small breweries are told they can't afford to lose.

But the female staff would disagree.

Over time, they start to notice things. Lingering looks. Comments that don't quite cross the line — but get uncomfortably close. Walking employees to their cars when no one asked him to. Nothing overtly sexual. Nothing you can circle in red and say, that's the moment. Just a steady accumulation of unease.

Then management learns something else: the customer is a registered sex offender. His offense? Sexually propositioning a minor.

The question isn't whether your employees are using AI at work (they are), but whether you're prepared for it

Employees using AI at work will be the workplace issue of 2026.

Not remote work.
Not noncompetes.
Not DEI.

AI.

Because employees are already using it — to draft emails, summarize documents, create work product, prepare presentations, and even help with performance reviews — whether employers have approved it or not.

And most companies are completely unprepared.

A tale of two (alleged) sexual assaults

A popular Cleveland restaurant and a popular Charlotte brewery chose very different paths after their owners were accused of sex-based crimes.

After rape charges were filed against the owner of Cleveland's TownHall, the owner's response was to fight—attack the prosecution, question the process, threaten legal action, and keep operating as usual. The framing was unmistakable: this was a legal fight, not a business crisis.

In contrast, after the owner of Charlotte's Sycamore Brewing was charged with raping a 13-year-old child, the response went the other direction. Leadership changed. The owner was removed. Divestment was announced.

And this week, Sycamore went further. Its taproom will close beginning today—not because the business committed any wrongdoing, but to allow for community healing and reflection. The current owner publicly expressed concern for the alleged victim, confirmed the complete removal of her former partner from the business, and made clear that Sycamore's future must align with the values of the community it serves.

'Twas the Employment Law Night Before Christmas (2025 edition)

In what has become an annual tradition for my final post of the year, I present the holiday classic, 'Twas the Employment Law Night Before Christmas … tweaked and updated for 2025.

To all of my readers, connections, and followers, new and legacy, thank you all for reading, commenting, and sharing throughout the year. Please have a happy and, most importantly, healthy and safe holiday season.

I'll see everyone on January 5, 2026, with new content to kick off the new year, including a fresh batch of Worst Employer nominees.

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WIRTW #784: the 'white male' edition

Something has gone sideways when the Chair of the EEOC is publicly urging white men to file discrimination charges.

Yes, I said it that bluntly, because sometimes clarity matters more than politeness.

Let's start with the part Andrea Lucas and her supporters rush to say first: Title VII protects all employees. Race is race. Sex is sex. Discrimination is discrimination. That has always been true.

But that's not the real question. And pretending it is avoids the harder, more important one.

The real question is why Congress passed Title VII in the first place. It wasn't because lawmakers worried white men might someday struggle for professional opportunity. It was passed because entire groups of people, especially Blacks and women, were systematically locked out of jobs, promotions, and whole industries. Not subtly. Not accidentally. By design.

Title VII was a civil rights law aimed at expanding opportunity for the historically marginalized and dismantling a labor market built on exclusion. That context matters. A lot.

So, when the head of the nation's civil rights enforcement agency makes public pleas for white men to file discrimination charges, she isn't just reciting a legal truism. She's making a strategic and moral choice about the purpose of civil-rights enforcement.

That choice is backwards.

This isn't about whether white men can be discriminated against. They can. The law already covers them. Courts already hear their cases. No special encouragement campaign is required.

What's troubling is the suggestion that "anti-white" or "anti-male" discrimination deserves priority attention, at a time when discrimination against marginalized groups is more subtle, more coded, and harder to prove than ever. Bias today rarely announces itself. It shows up as "not a fit," "not leadership material," "not polished," or "lacking presence." The people most insulated from those vague, subjective assessments remain the people most likely to be presumed competent and neutral on arrival.

The EEOC Chair's solicitation of white men isn't a message of neutrality. It's a reframing of civil rights enforcement.

Her shift has consequences. Employers don't become fairer in response to this rhetoric; they become more cautious and more defensive. As a result, they make "safe" hiring choices. Historically, those choices are familiar ones, which is how old inequities quietly reassert themselves.

If an employer excludes someone because they're white or male, enforce the law. Period. But publicly encouraging white men to file charges misreads purpose, history, and present reality.

The EEOC was created to open doors that had been nailed shut for generations. It was not created to reassure the historically powerful that losing exclusive access feels unfair.

Civil rights enforcement should be about expanding opportunity—not manufacturing grievance.

And the moment we forget that is the moment we stop protecting civil rights at all.

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Here's what I read this week that you should read, too.

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Test

"We can't do that" is not an ADA interactive process. Or is it?

The 6th Circuit just handed employers a clear win in Bowles v. Chicken Salad Chick. The court held that a fast-casual restaurant did not have to accommodate a cashier/service employee who requested to sit for five minutes after every ten minutes of standing. That request would have eliminated essential job functions and fundamentally changed the job.

The Sixth Circuit held that an employer cannot be liable for failing to engage in the ADA interactive process where the employee's requested accommodation is unreasonable as a matter of law, because an interactive-process claim presupposes the existence of a viable reasonable accommodation.

The Worst Employer of 2025 is… 🥁

After a year of collecting 12 nominees and then letting you all decide from the final seven via ranked-choice voting, we didn't even need a second round. The votes were that decisive and the result was never in doubt.

🏆 Worst Employer of 2025: 

The New Jersey Organ and Tissue Sharing Network 

Five things to consider in a difficult termination

Today is your final day to VOTE for the Worst Employer of 2025

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One of my recurring professional nightmares is advising a client on a termination that goes badly.

Not "this ends in a lawsuit" badly—but catastrophically badly. The kind that devolves into workplace violence, an active shooter situation, or some other despicable act that no one saw coming but everyone later says should have been anticipated.

That fear drives my mantra with clients: you can never be too careful. If there's even a whiff that something could go sideways—emotional volatility, erratic behavior, mental health concerns, escalating conduct—you take reasonable steps to make sure it doesn't. You plan. You slow down. You involve the right people. You treat the termination not as an HR task, but as a safety event.

Which brings me to former Michigan head football coach Sherrone Moore.

WIRTW #783: the 'Christmas movies' edition

What are the best Christmas movies of all time?

It's a debate as old as Christmas movies themselves. (And yes, this is absolutely the kind of important question a legal blog should tackle.)

Before we can answer this vital question, we first must examine what makes a Christmas movie "great." For the best Christmas movies aren't just holiday wallpaper, they must also check a few key boxes:

✨ They have heart. A good Christmas movie leaves you warmer than it found you.

🎄 They feel like the season. Lights, snow, music, awkward gatherings (families and otherwise). They indulge the full sensory experience.

😂 They make you laugh. Not mean-spirited humor, but that familiar, "yep, that's my family, too" kind of laughter.

❤️ They hit an emotional note. Reconciliation. Joy. Second chances. Belief.

🗣️ They are quotable. "You sit on a throne of lies." "I triple dog dare you!" (Fun fact: I went to Hebrew School with the actor who played Schwartz.) "Yippee-Ki-Yay, Mother…"

♻️ And most importantly: they're rewatchable. A great Christmas movie becomes part of your yearly ritual, and you never tire of the annual viewings.

With these criteria in mind, here's my list of the 5 best Christmas movies of all time, the ones I come back to year after year:

Elf — Pure joy. Will Ferrell at peak earnestness and silliness. A modern classic that earned its place fast.

National Lampoon's Christmas Vacation — The definitive portrait of holiday chaos. We've all lived some version of this movie.

A Christmas Story — Childhood nostalgia in cinematic form. It's impossible not to see a little of yourself in it.

Die Hard — Yes, it's a Christmas movie. No, I will not be taking questions at this time.

The Muppet Christmas Carol — The best Dickens adaptation ever made, and I'm prepared to die on this hill.

That's my list. Feel free to tell me why I'm wrong, and share your own. 'Tis the season for strong (and good-natured) opinions.

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Have you voted yet for the Worst Employer of 2025? 

Cast your vote here.

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Here's what I read and listened to this week that you should, too.