Rules for employees who are over age 40

In order for a release of claims for age discrimination to be valid, it has to be voluntary and knowing. This means that it must meet the following minimum standards:

• It must be in writing;
• It must be written in an easily understandable manner;
• It must use plain language;
• It must not be misleading to the employee who will execute the release;
• It must not exaggerate the benefits that the employee will receive in exchange for signing it;
• It must refer to the ADEA specifically;
• It must advise the worker to talk to an attorney before signing it;
• It must not require employees to waive their claims or rights that may arise after the date that it is signed.

The worker must receive additional consideration that goes beyond any amounts to which he or she was already entitled.

Employers are required to give their workers enough time to consider the release. Single employees must be given a minimum of 21 days to consider the releases beginning with the date of the employer’s final offer. After the employee has signed a release, he or she will then have a seven-day period within which he or she may revoke his or her agreement. If the release does not include these time periods, it will be unenforceable.

Requirements when two or more employees who are older than 40 will be terminated

Employers who ask for a group of employees who are 40 or older to sign releases must follow additional requirements. Groups of workers who are older than 40 have consideration periods that are 45 days. Employers must also give the workers detailed data about all of the other workers who have been asked to sign releases and have been offered severance. These requirements exist even if the terminations are spaced out over time if they all arise from the same decision. The following data must be given to each of the older workers:

• The group of employees covered by the exit program
• The program’s eligibility factors
• The program’s time limits
• The ages and job titles of all of the workers who are eligible to participate in the program or who were selected for it
• The ages of all of the workers within the same classification who were not selected for or eligible for the program

The purpose of requiring that this information is given to the employees is to help them make informed decisions about whether or not they should sign. If you have been asked to sign a release, you may want to review it with one of the employment lawyers at Swartz Swidler to make certain that your rights are protected.