As promised, this week The Emplawyerologist will devote its time to the special rules that apply to severance agreements offered to employees over 40. The Older Workers Benefits Protection Act (OWBPA), which is part of the Age Discrimination in Employment Act (ADEA) imposes specific requirements regarding severance agreements, and particularly release provisions in severance agreements. While the OWBPA most often applies to involuntary terminations and reductions-in-force, its rules will also apply to early retirement plans, exit incentive plans and voluntary departures where the employer asks the employee to sign a release. First, a few general comments about the OWBPA and its requirements regarding release provisions contained in severance agreements: As you might already realize, the OWBPA provides additional protections to employees over 40. As I indicated above, the OWBPA is part of the ADEA, which prohibits age-based employment discrimination, and applies to employees who are forty years of age or over. It is an employee-friendly law that imposes strict requirements. Releases that do not fulfill the OWBPA’s requirements are not enforceable.
What are those requirements? Let’s take a look:
- The release must be in writing. This requirement may sound like it should be a given, but I assure you that many businesses, especially small ones, routinely operate without written agreements. While it is possible to have an implied employment agreement (Click here for a review of this concept) the law does not allow an implied release when the terminated employee is 40 years of age or older. Employers therefore cannot expect to hold an over-40 year old employee to an oral agreement that s/he will, in exchange for money, benefits or both, not file an age discrimination claim.
- It must be written in plain, clear language, in a manner which the employee is likely to understand ,and that avoids technical jargon, complex terms. If the employee needs a lawyer to read it for him or her before s/he can get any idea of what it says, it is probably unenforceable.
- The release must not exaggerate the benefits offered or the limitations imposed, or mislead or misinform in any way. If a severance agreement offers 4 months’ severance pay and continuation of medical benefits, it should say that, and no more and no less. The release cannot require the employee to give up the right to file EEOC or similar state charges or prohibit him or her from cooperating in an investigation by or testifying in a proceeding before either such agency, because that would mislead the employee into thinking that such a prohibition is legal and binding, when it is not.
- There must be a specific reference to the ADEA. Waivers of ADEA claims must be knowing and voluntary. A release devoid of any reference to the ADEA therefore cannot be a knowing and voluntary waiver of ADEA claims.
- It cannot require the employee to waive rights or claims arising after the date the employee signs the release. Claims triggered by facts occurring after the employee signs the release cannot be subject to the release.
- It must advise the employee to consult an attorney before signing.
- The release must give the employee twenty-one (21) days from the date of final offer to consider whether or not to sign. Unless the employer and employee agree otherwise, significant changes to the offer will “restart the clock”.
Except for the last item, the above requirements will apply to all releases in severance agreements, whether offered as part of an involuntary termination, reduction-in-force, early retirement or exit incentive plans. When an employer is looking for releases from two or more over-forty-year-old employees, however, there are more —yes more!– requirements. The employer must provide all such employees detailed information about the other employees to whom it is offering severance and requesting a release. The terminations do not need to be on the same day to qualify as multiple terminations under the OWBPA. Staggered terminations that are part of the same decision-making process will count as multiple terminations, subject to the additional information requirements. Also, the consideration period increases from 21 to 45 days. We are in the home stretch here, so let’s go through those additional requirements so we can call it a wrap:
- The class, unit or group of employees covered by the exit program, whether voluntary or involuntary;
- Factors used to determine eligibility for the program and time limits, if any, applicable to the exit program;
- Job titles and ages of employees eligible for voluntary exit incentive programs or who were selected for involuntary termination programs;
- Ages of all employees in the same job classification or organizational unit either ineligible for the voluntary exit incentive program, or not selected for an involuntary termination program.
Can you see a pattern to these additional information requirements? The law requires this information so that an employee can truly make an informed choice before waiving his or her rights under the ADEA. The required information will enable the employee to consider the possibility that s/he may be waiving a valid ADEA claim. If so, s/he can decide whether the benefits offered as part of the severance plan are enough to warrant waiving an ADEA claim that could ultimately provide him or her a larger sum of money. While an employee could still attempt to bring an ADEA claim, and while the ADEA does not require the employee to refund the severance pay or other benefits prior to filing suit, a court may well reduce any award s/he receives by the amount of severance pay s/he previously accepted from the employer.
As I said in the beginning, and as you can see, the OWBPA is fairly strict. If you are an employer, and you are considering termination of one or more employers over age 40, make sure you consult with either in-house or competent outside counsel before you either offer a release or develop and implement any type of exit incentive program!
Well, that’s a wrap for now! Next week The Emplawyerologist will begin a new adventure into the kingdom of pre-employment screening, so make sure not to miss it!
Disclaimer: The contents of this post are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.
Click here to learn more about Janette Levey Frisch, author of The Emplawyerologist.
Got requests or ideas for topics you would like to see covered by The Emplawyerologist? Better yet, would you like to be a guest blogger? Email The Emplawyerologist at theemplawyerologist@gmail.com.
Are churches subject to the ADEA?
Hi Cheryl,
Thank you for your question. In most cases probably not. If the employee is performing religious functions, then under the ministerial exception, the ADEA does not apply. If the employee is not one who performs religious functions then if the church employs fewer than 20 employees it will not be subject to the ADEA on those grounds. Hope that helps.
When releasing two or more over 40 yr old employees in a group including under 40 yr old employees, is teh 45 day consideration required for all employees or just those over 40?
Hi Jenny,
Thank you for your question. The 45-day consideration would apply to the whole group if at least 2 employees in the group are over 40. Hope that helps.
If the release agreement does not include any severance pay, does it sill require a time provision?
Hi Tanya,
Thank you for your question. The Release Agreement is probably not enforceable if there is no severance pay. For a contract to be enforceable there needs to be an exchange of promises. If the employee is promising not to sue, what is the employer offering the employee in exchange? If the answer is nothing, then it does not sound like an enforceable contract and the issue of time provision would likely be irrelevant. Otherwise, generally speaking, when a termination involves workers over 40 then federal law does require a time provision. Hope that helps.
just to confirm….we only have 6 employees so we are NOT subject to the ADEA and OWBPA? Then it also follows that we would not need to satisfy the 8 requirements in a Release?
Hi Al,
Thank you for your question. You are correct that your firm, having only 6 employees would not be subject to the federal ADEA and OWBPA. However, I would urge you to make sure that your State’s laws do not include similar provisions. Some states do have similar provisions, but with lower thresholds for determining which employers are subject to their laws.
Thanks so much for the response. I check Florida and don’t see anything contrary to what you told me. I believe we may be overcomplicating matters by using a separation agreement that includes a waiver of ADEA/OWBPA claims when we’re not subject to those laws.
You might want to check with local counsel to see if it may be helpful to include language informing the employee that you are not subject to those laws. I am not admitted in Florida so I cannot actually advise you on whether to do it….
I just want to clarify. An employer cannot force an employee to wave his or her EEOC rights?
Hi Mark,
Yes, that is correct. An employer cannot force an employee to waive his or her right to file an EEOC charge. Even if an employer were to have an employee sign such a waiver, it would be void. If a charge is not settled and if the EEOC does not choose to sue on the charging party’s behalf, then the EEOC issues a Right to Sue Letter. The employee/charging party would normally have a right to sue in federal court, unless s/he has signed a waiver such as the one discussed in this post. If you need a more detailed answer, I would encourage you to speak with local employment counsel.
In a large organization, it is possible that we would be providing hundreds of people the ages of all their fellow employees who are and are not eligible for voluntary separation. This seems like a breach of privacy, and a real concern for those who may end up interviewing for a new job with people who have copies of the list. Out titles are almost all individually assigned…..
Are we really supposed to provide all those eligible with a list of eligible and not eligible titles/roles with ages? Thanks.
Hi Mary,
The OWBPA does in fact require providing titles and ages of those eligible and not eligible so that those being offered severance. To the best of my knowledge that information is not protected by privacy laws. I understand your concern about facing possible discrimination when they are interviewing for new jobs though. Presumably if the applicant can prove that the employer had that list and could prove that the decision not to hire him/her was based on age, that employer would find itself defending an age discrimination claim. If you have other questions, I would urge you to contact local counsel. The state in which your company employs people may have its own laws that impose further requirements.
Thanks so much for the quick response. It is most helpful.
Once again, thank you for posting this very important information for older employees. I have learned a great deal and I feel better prepared to respond to any “waiver” that may be placed in front of me in the near future.
We are terminating 2 employees older than 4o purely for performance issues. This is not a group lay-off. Do we still need to inform them about the other employees termination and give them 45 days to review??
Hi Cynthia,
If you are looking to take steps to ensure that they do not sue, particularly under the ADEA, then you would want to have a severance agreement, and yes, it must comply with the Older Workers Benefit Protection Act. You do not mention the state in which you employ these two people, but you will want to check and see if that state has any additional age discrimination protections. Please feel free to email me privately at theemplawyerologist@gmail.com if you would like to set up a 30-minute complementary consultation. I wish you the best of luck in any case 🙂
I am in my late 50’s and work for a large production manufacturing company. I believe I will be terminated in the near future by my new plant manager. He has written me up and gave me a month to complete a goal that I cannot achieve because it is totally out of my control and I told him that. Corporate employees have been to the plant and given me accolades on the improvements that have been made since I came to the plant and told me in front of the plant manager that they have heard good things about me. Even at that, I am sure that he plans on terminating me. Do they have to offer me a severance package if this happens or what other options do I have? It won’t be easy finding another job at my age. I work and live in Missouri.
Hi Lawrence,
Thank you for your question. In answer to your first question, there is no legal requirement that an employer offer a terminated employee severance benefits. That said, many employers will offer severance, if only to head off a wrongful termination claim (whether it is justified or not). If you are terminated and if you have proof of all that you have said, and if your employer does not have sufficient proof that it had other legitimate reasons for terminating you, then I would recommend you speak with an employment attorney in Missouri, who will hopefully spend some time with you and help you evaluate your options. I wish you the best of luck!
Thank you for your quick response and clarifying about the severance. I am not one to contact an attorney because that isn’t the way I am. I hope it doesn’t come to that.
Good Morning and thank you making this resource available..
I have read VERY extensively re ADEA releases, I am over 40, I was part of a ‘so called restructuring in which 4 men ([myself included] ages 51, 57, 61, & 65) were terminated over a 6 month period, and I have a few questions. My employer had over 20 employees
I was given a 21 day acceptance period to sign the release, however i question if in fact this could be construed to be a group termination that just happened to be purposefully spread over a 6 month period to avoid the appearance of a group termination and the add’l group termination requirements of a 45 day acceptance period and add’l disclosures as to who was terminated.
The release states i have a 7 day revocation period yet it requires the revocation to be delivered to “Mary Smith, secretary ON THE 7th DAY”. Doesnt this effectively shorten the revocation period?. How can I have a 7 day period if I am required to get the revocation statement to an employee ON THE 7th day? Additionally, the 7th day was Tuesday and the secretary never works on Tuesdays and Thursdays. As I understand it, a 7 day period is seven 24 hour periods starting on the day after I accepted the release. Driving by my former place of employment at 700pm on Tuesday the 7th day, the place was clearly closed. How do I deliver a revocation to a location that is closed for the day and to a person who does work on this Tuesday, the 7th day.?
The release states it is to be governed, interpreted, and enforced under the state laws of ___________.
How does one bring a suit under the federal EEOC or under the federal OWBPA and ADEA if only the laws of the state of _________ are applicable?
The advise to consult an attorney clause is in a letter separate from and not part of the 5 page, single spaced release.. As i understand it, this statement has to be PART of the release. Additionally the release states….” this agreement sets forth the ENTIRE agreement between the parties…………………..No party is relying on any representations, warranties, undertakings, agreements, or understandings except as expressly set forth herein.” Given the advise to consult an attorney clause is in a separate letter outside of the release, what result given the above language
The release paragraph itself is 357 words, 56 commas, and 3 semicolons with technical jargon such as a “covenant not to sue” and “not withstanding the foregoing”, This release paragraph is ONE SENTENCE !!!!!!……….356 words!!!!!! The OWBPA states the release s/b written in manner meant to be understood by the person for whom it was intended based on their education and experience. I have a 4 year college degree, but it is in elementary education, not law, and especially not in employment law. OWPBA also suggests the release avoid avoid long, complex sentences. I would strongly speculate the people writing this release have no idea what level of education i have attained. Lastly the release paragraph states I waive all claims to the date of this agreement, then goes on to state that I waive FUTURE pay. Not only does this 356 word paragraph contradict itself, OWBPA clearly states future claims cannot be waived and from my reading on this topic and some general law, future claims can never be waived.
Again thank you.
Hi Larry,
Sorry to hear about your termination. You may have a valid argument that the release did not act as a valid waiver under the ADEA and that the four terminations were really a group termination even though they did not all happen at the same time. Depending on when the termination happened and the specifics of your termination you may also have a viable ADEA claim. Furthermore, depending on the state where you were employed you may have one or more state law claims as well. I am not in a position to give you legal advice by way of comments on this blog. I would urge you to speak with local employment counsel to properly evaluate your options.
I work for a well-known large Fortune 500 company that is going through a mass layoff and I have been laid off. The number of people laid off will be in the hundreds and is occurring over just a few days; yet we are being told there is only a 21-day consideration period despite the fact that obviously there is a large percentage older than this (including myself and other colleagues). Shouldn’t it be 45 days for everybody? I think there may be financial reasons to bring it in sooner, not sure. Is there some loophole they’ve found to allow them to do this?
Thank you for your question. It would appear, based on what you have told me and in the absence of other significant facts that we don’t know, that the consideration period should be 45 days–particularly if there is at least one laid off employee over 40. It could be that the company printed out a standard severance agreement that it uses without proofreading first to see if any edits should have been made.
Many thanks for the reply. I haven’t actually seen the agreement yet – I’m only going by the information I was given by the HR customer service center. The layoff package I was given doesn’t call out a date either. I suspect they are just trying to move things along for financial close in Q2. We’ve been told we will get the agreements in the mail “within 3 weeks”. If it does appear that they are going to insist on 21 days, is there some official body I should report this too?
Hi Tim,
You can show them the federal regulation. Here is the link: https://www.law.cornell.edu/cfr/text/29/1625.22.
Doubtful they’ll insist on 21 days after that–again, assuming there aren’t other facts I’m not aware of. (I can’t think of anything offhand that should allow them to only give you 21 days if they are laying off more than one employee over 40.
Thanks again for the information (so prompt too!) The only difference perhaps is something people are getting retirement benefits (and extra pay I believe) as part of their severance if they meet the company’s rules for retirement.
Finally got hold of somebody knowledgeable in HR who confirmed it is 45 days.. Clearly there needs to be better communications and training for the HR team dealing with the lay offs! Thanks again for your help
I work for a large employer that has just announced a 10% reduction in force, and has started by asking for applicants for voluntary severance, to be followed by involuntary severance. I understand that if two or more of us in the involuntary class are over age 40, then we’ll have 45 days to decide upon signing the anticipated waivers. If I use that 45 days, I’m assuming it will be without pay or benefits during that period. Does COBRA allow me to continue health benefits at my cost during that period of decision?
Hi Phil,
Your employer has to send you a COBRA letter within approximately 45 days of your termination date. You then have 60 days from the notification date to elect or not elect COBRA benefits. Your coverage will be retroactive to Day 1 (i.e. first day after last day of coverage). You will generally pay 102% of the premium (that is the premium, plus a 2% administration cost that the employer is entitled to charge). If you accept your severance package, and if your severance package includes health benefits during the severance period then your coverage terminates after the severance period. Hope this helps.
I am a 49 year old male. My employer ask me to step down to a lower position, and relocate my work place 40 to 50 minutes away, or take a severance package. Would the 21 day review still be in affect?
Hi Michael, Benerally, if your company has 15 or more employees and If you are offered a severance agreement with a waiver claims under the Age Discrimination in Employment Act, then yes, the 21 day review period is in effect if you are the only one being terminated. I would suggest you have the severance agreement reviewed by an employment attorney near you to make sure that you are fully informed, and hopefully protected. Good Luck!
Hello,
I was released from my position on January 19th 2017 from my position as a Deputy Director of Policy Education and Training, I am also a PhD candidate majoring in public policy and social change. I am a black woman over 40-47 to be exact, but because they were moving into a more scientific direction my position was eliminated. They stated verbally all of these things but only provided me with documentation of unemployment insurance, when my insurance would run out, and my 401k. They did not provide me with a letter of termination. They said I would have a severance of one month however it was not in writing either. They let another person go on the same day for the same reason, she was black and also over 40. Was this termination just and legal? Under this act are they supposed to provide us with a longer severance?
Hi,
Thank you for writing in. Without knowing more facts I cannot say for sure if your termination was legal or not. I recommend you speak with employment counsel near you and get a full consultation. I can say that the OWBPA and the ADEA do not mandate severance, nor do they mandate a specific amount. If your company has 20 or more employees and if it did not offer you any type of written severance agreement, then you are not barred from filing a federal age discrimination charge with the EEOC, which, if not resolved could result in either the EEOC filing suit on your behalf or you having the right to file your own lawsuit. The other question is what if any other similarly situated employees did the company retain? That may help answer your question as to whether you have a viable age discrimination claim. The other reason I would want you to speak with local employment counsel is to see if there may be any applicable state laws here as well. Good luck!
My company Hilton Inc was taken over in 2007 by a billion dollar private equity giant for 26billon in cash I’m in a union and was offered 3 very low offers which I refused have not heard back from company in 3 years since I’m 62 and the work load and overtime is too much at my age we have 8 more years of this contract with 5 weeks vacation and full health care and raises each year I’d be giving this billion dollar firm of wealthy investors all this can I go to the company on my own with a lawyer and receive a better package?
Hi,
Just to make sure I am clear. Are the offers you referred to a voluntary termination/retirement package? In either case, the answer to your question may depend at least in part on what your Collective Bargaining Agreement says. It also depends on whether the state in which you are employed as any laws that apply to your situation. I would urge you to take the offer(s) you received, along with your Collective Barganing Agreement, and speak with a labor attorney near you.
Thank you for your reply to my question about severance my whole thing regardless who takes up my claim my union or a labor attorney is can I ask for a decent amount of of severance after the company has not called in 3 years? When I reached out to my former hr. Director he said the company may have reached its financial goals yet had I taken the last offer my company offered 3 year’s ago now in 2017 I’d have no job no prospects for one as an” older worker at 62 not old. Enough by law to fully collect benefits due to giving up 10 years of a contract that calls for yearly pay increases 5 week’s paid vacation and full health coverage to a wealthy firm who’s net worth is over 300 billion dollars my situation here is what is wrong with our great country corporate greed!!
I must confess I am having some difficulty understanding your question. That may be because the matter is somewhat complex, and some time has passed. That is why I think you really need to speak with a employment counsel near you and let him/her look at the offer(s) you did receive, along with your CBA and help you evaluate your options. I wish you the best of luck.
I may have missed this addressed in the comment string & I don’t think I saw it stated in the article…
During the consideration period (whether 21 or 45 days), does the company need to continue to pay the employees and provide benefits, or does the consideration period stand separate from the issue of compensation? In the case of 2+ people 40 or older employees being let go, does the company need to continue to pay the employees during their 45-day consideration period?
Good question. If the employee is no longer working for the company and has not yet signed the severance agreement offered, then, generally, in the absence of other statutory or contractual obligations, the employer will not have to continue paying the employee(S) during the 45 (or 21)-day consideration period.
I was terminated yesterday from a company that employs 1,000+. I worked at this company for fourteen and a half years. I’m 60 years old; there were over 100 people also terminated yesterday, many over 40. I was offered a severance package, and I believe the others terminated were offered severance packages as well. This wasn’t a stepped program. It was a straight and immediate reduction in workforce.
I was not given, and there was no reference to, any list of other age 40 or over employees who were also terminated yesterday. I was not given, and there was no reference to, any list of other age 40 or over employees who were not terminated.
Was my former company in violation of the law by not furnishing this information? I live in New Jersey; my former company is located in New Jersey.
Thank you.
It would sound like the company has not complied with the OWBPA, which means that you any waiver of claims you signed, would not be an effective waiver of ADEA claims. Given that you are in NJ, however, you also have the option of proceeding with a claim under the New Jersey Law Against Discrimination, which tends to be more employee-friendly.
When is this list of other workers offered severance supposed to be provided?
Hi Ben,
Generally it should be offered with the severance agreement.Hope that helps.
Am i able to go to my company who offered 4 very low offers and negotiate i would have left if offers were higher our union contract is for 9 years i make 80,000 a year of course i turned down all low offers Lawrence lundy
Is the OWBPA regulation requirements offered in place of the terminating employee waiving any current or future ADEA claims?
Our current Severance and Release Agreement states that they are NOT releasing there rights to any age discrimination claims. Since we’re not requiring that they waive their rights to age discrimination claims are we still required to follow OWBPA regulations for employees 40 and over?
My company is located in Texas and we have over 20 employees.
Hi Sam,
Thanks for writing. If you are not looking for terminated employees to release ADEA claims, then you do not have to comply with the OWBPA. Conversely, if you do not follow the OWBPA, then your terminated employees are not barred from bringing ADEA claims. Hope this helps.
Hello, not sure if this is the correct ‘blog’ section to ask this in, but my department is, or was mostly 40 years old and up. My question, is the company offering the severance obligated to give the folks taking the severance any definitive time frame for when the last day would be? When the paperwork for the severance will be given to them? In my case, I was told over 3 months ago, and the intended date keeps being pushed back. I keep being told that my paperwork has been submitted, and they are waiting on the package. Now this sounds great in one sense, I still have a job, and am still being paid, but on the other hand, it is making it very difficult to make plans moving forward with my life, jobs, relocating, etc, being I have no idea when I will be free to take the next step.
Hi, I was recently terminated from my job and was given a release to sign in order to receive a severance payment. The release while waving my rights under the ADEA, did not contain any of the requirements required by the OWBPA, such as giving me 21 days to review the release. When I asked for more time to review and even mentioned that I should have 21 days as required by the OWBPA, my request for more time was denied, My question is, if the release fails to meet the requirements set forth by the OWBPA does that make the entire release unenforceable or does it just make the waving of my rights under the ADEA unenforceable?
Thank you for your time.
Hi Patrick,
First, does your company have 20 or more employees? Second, are you over 40? If the answer to both questions is “Yes” then if the release contains a waiver of ADEA claims then, yes, it must comply with the OWBPA. If it does not, then the waiver of ADEA claims would not be enforceable. The failure to comply with the OWBPA would not invalidate waiver of other claims, however.
Thank you so much for the quick reply and the straight forward answer. The answer is yes to both however I don’t believe age discrimination was at play in my termination.
(My rational for the question was that if the guidelines set forth by the OWBPA are to ensure that a release is signed “knowing and voluntary” by the employe and then those guidelines are not adhered to, it stands to reason that the entire release falls under not having been signed “knowing and voluntary”. After all, the conditions that must be in the release as set forth by the OWBPA, apply to the entire release. For example, the 21 days to review the release are not to just for reviewing the waving of claims under the ADEA but for the employee to review the release as a whole. I thought that the rules of the OWBPA act as a kind of umbrella that covers protecting the employe when waving all of the claims that are found in a release.)
Just my 2 cents. This is why you are the lawyer and I am not! 🙂 Thank you again. Having a definitive answer to my question is very helpful.
Cheers,
Patrick