CUSHNER & BLOOM, P.C.

BROOKLINE, MA  02446

Tel. (617) 608-0019

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AGE DISCRIMINATION IN EMPLOYMENT

New Development in the Law of Age Discrimination

Under the federal law known as the Older Workers Benefit Protection Act (OWBA) an employee cannot waive his right to sue his employer for age discrimination under the federal law known as the Age Discrimination in Employment Act of 1967 (ADEA) unless several conditions are met.  If the employer does not meet these conditions when obtaining  the employee's  written agreement not to sue (sometimes called a "Release"), the agreement may be unenforceable and the employee may still be able to bring a claim for age discrimination.  Some of these conditions are set forth in the law, as follows:

 

Older Workers Benefit Protection Act, §201, 104 Stat. 983, 29 U.S.C. §626(f):

(f) Waiver 

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(a) An individual may not waive any right or claim under this chapter unless the waiver is knowing and voluntary.  Except as provided in paragraph (2), a wavier may not be considered knowing and voluntary unless at a minimum -

 (A)  the waiver is part of an agreement between the individual and the employer that is written in a manner calculated to be understood by such individual, or by the average individual eligible to participate;

 (B)  the waiver specifically refers to rights or claims arising under this Act;

 (C)  the individual does not waive rights or claim that may arise after the date the waiver is executed;

 (D)  the individual waives rights or claims only in exchange for consideration in addition to anything of value to which the individual already is entitled;

 (E)  the individual is advised in writing to consult with an attorney prior to executing the agreement;

 (F)(i)  the individual is given a period of at least 21 days within which to consider the agreement; or

 (ii)  if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the individual is given a period of at least 45 days within which to consider the agreement;

 (G)  the agreement provides that for a period of at least 7 days following the execution of such agreement, the individual may revoke the agreement, and the agreement shall not become effective or enforceable until the revocation period has expired;

 (H)  if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the employer (at the commencement of the period specified in subparagraph (F)) informs the individual in writing in a manner calculated to be understood by the average individual eligible to participate, as to -

 (i)  any class, unit, or group of individuals covered by such program, any eligibility factors for such program, and any time limits applicable to such program; and

 (ii)  the job titles and ages of all individuals eligible or selected for the program, and the ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the program.

 (2)  A waiver in settlement of a charge filed with the Equal Employment Opportunity Commission, or an action filed in court by the individual or the individual's representative, alleging age discrimination of a kind prohibited under section 4 or 15 may not be considered knowing and voluntary unless at a minimum -

 (A)  subparagraphs (A) through (E) of paragraph (1) have been met; and

 (B)  the individual is given a reasonable period of time within which to consider the settlement agreement.

 (3)  In any dispute that may arise over whether any of the requirements, conditions, and circumstances set forth in subparagraph (A), (B), (C), (D), (E),(F),(G) or (H) of paragraph (1), or subparagraph (A) or (B) of paragraph (2), have been met, the party asserting the validity of a waiver shall have the burden of proving in a court of competent jurisdiction that a waiver was knowing and voluntary pursuant to paragraph (1) or (2).

 (4)  No waiver agreement may affect the Commission's rights and responsibilities to enforce this Act.  No waiver may be used to justify interfering with the protected right of an employee to file a charge or participate in an investigation or proceeding conducted by the Commission.

 

 

Assume an employee is offered a severance package as part of his termination which includes that in order to get severance pay the employee must sign an agreement stating that he waives all rights to sue the employer on account of age discrimination.  If the agreement is found to be invalid as not meeting the conditions under OWBPA, must the employee return the severance pay before suing for age discrimination?  This question has plagued the different federal courts for quite some time and has led to different results depending on which state you were in.

The U.S. Supreme Court recently put the question to rest and decided in Oubre v. Energy Operations, Inc. that if the written termination agreement does not comply with the conditions set forth in OWBPA, then the employee maintains the right to sue for age discrimination under the ADEA, whether or not they accepted severance pay, and that return of any severance pay is not required before an age discrimination case can be brought.

                                  

Attorney Steven Bloom offers representation in all areas of discrimination, not only employment discrimination, but including housing discrimination and discrimination in places of public             accommodation as well.