Of course, firms cannot single out senior advisors or treat them differently because of their age. There are a number of federal, state and local laws that specifically protect employees from adverse actions based on their age. As a result, firms will face difficult questions when they believe an advisor is no longer capable of serving investors. On one hand, firms have an obligation to protect investors and take appropriate steps to supervise aging advisors. On the other hand, if the firm takes action against an older advisor, the advisor may claim discrimination. Firms must then be able to show the adverse action was not based on age, but instead based on the obligation to protect investors. Making sure they are in the best position to defend their actions, firms should establish best practices to serve older investors and advisors and consult human resources and legal along each step of the way.

Josh Jones and Matthew Penfield are principals with Bressler, Amery & Ross P.C. in Birmingham, Ala. In addition to his FINRA litigation practice, Josh is a member of the firm’s Senior Issues: Counseling and Litigation Defense group, whose members have a shared interest in providing counsel to corporate clients who confront issues affecting seniors. Matthew counsels and represents employers, including multiple brokerage firms, in a broad range of labor and employment matters.

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