Common Mistakes Employers Make Concerning The Older Workers’ Protection Act

Common Mistakes Employers Make Concerning The Older Workers' Protection Act

Many employment law attorneys receive requests to review severance offers. If you have received a severance offer, you may want to have your offer reviewed by an experienced attorney at Swartz Swidler to make certain that it complies with the requirements of the Older Workers’ Benefit Protection Act, or the OWBPA. Roughly half of all severance offers do not comply with the OWBPA.

OWBPA requirements for a release of age discrimination claims

Many severance offers will ask workers to release their rights to file age discrimination claims. In order for these to be valid, they must adhere to the following:

  • The waiver must be understandable and in writing.
  • It must refer to ADEA claims or rights.
  • The employee cannot waive claims or rights that might arise in the future.
  • Valuable consideration must be offered in exchange for the waiver, which must be more than the employee is otherwise entitled to receive.
  • The employee must be advised in the waiver in writing to consult with a lawyer before signing.
  • The employee must be given at least 21 days to consider the waiver agreement and at least seven days to revoke it after signing.

Any severance offers to employees who are older than 40 must comply with these requirements. Waivers that are requested in connection with a workforce reduction have additional requirements.

Waivers in workforce reductions

When waivers are requested as parts of the severance offers that are extended to a group or class of employees, each individual employee must have at least 45 days to decide whether or not to agree to the waiver instead of 21 days. The workers must also be given a list of the ages and job titles of those who are eligible for the program along with the ages of those people in the same unit or with the same job classification who were not selected for the program.

This means that employers who are offering severance packages to reduce their workforces must give all of their employees who are 40 or older with a list of the employees in the same unit who are being offered the severance package in order to waive their claims. The employers must also disclose the eligibility criteria that they used for the severance programs. If the employers fail to comply, the waivers will be invalid.

Contact Our Attorneys

If you are older than 40 and have been offered a severance package in exchange for a waiver of your rights under the ADEA, you might want to consult with the experienced employment lawyers at Swartz Swidler. Our attorney may help you to evaluate the waiver and determine whether or not it complies with the OWBPA. Contact us today to learn about your rights.