Conditional bona fide seniority system or benefit plan

EXCEPTION · 29usc623:benefit-plan

Statutory alternatives: (A) a bona fide seniority system without an evasion purpose; (B)(i) the prescribed equal-benefit/cost condition or (B)(ii) a voluntary early-retirement incentive consistent with the Act. The defendant bears proof. Both seniority and benefits forbid age-based involuntary retirement as stated; the additional failure-to-hire prohibition applies to (B), not automatically to every seniority system. Pension accrual compliance belongs in pension-safeguards, not an unconditional f(2) exemption.

Exact element source

(2) to take any action otherwise prohibited under subsection (a), (b), (c), or (e) of this section-

(A) to observe the terms of a bona fide seniority system that is not intended to evade the purposes of this chapter, except that no such seniority system shall require or permit the involuntary retirement of any individual specified by section 631(a) of this title because of the age of such individual; or

(B) to observe the terms of a bona fide employee benefit plan-

(i) where, for each benefit or benefit package, the actual amount of payment made or cost incurred on behalf of an older worker is no less than that made or incurred on behalf of a younger worker, as permissible under section 1625.10, title 29, Code of Federal Regulations (as in effect on June 22, 1989); or

(ii) that is a voluntary early retirement incentive plan consistent with the relevant purpose or purposes of this chapter. Notwithstanding clause (i) or (ii) of subparagraph (B), no such employee benefit plan or voluntary early retirement incentive plan shall excuse the failure to hire any individual, and no such employee benefit plan shall require or permit the involuntary retirement of any individual specified by section 631(a) of this title, because of the age of such individual. An employer, employment agency, or labor organization acting under subparagraph (A), or under clause (i) or (ii) of subparagraph (B), shall have the burden of proving that such actions are lawful in any civil enforcement proceeding brought under this chapter; or

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