Does It Ever Make Sense to Get an Age Discrimination Release?

By Eric B. Meyer

In honor of my 40th birthday today, how about a primer on age discrimination releases?

I’m pretty sure that I’ll get my employment-lawyer-blogger card revoked if I don’t offer a self-deprecating blog post about age discrimination on my 40th birthday. But, feel free to raise my spirits by pledging a pair of tickets to the Philly stop of the Guns N’ Roses reunion tour.

Oh, God! I really am old!

Six elements of an age discrimination release

So, let’s say that you want to lay me off, or anyone else over the age of 40 — but, especially me, because I’m litigious…

You’re probably going to want a release of all claims. By definition, that release of all claims includes potential age discrimination claims.

But, be careful! Because to get a legally-binding release of claims under the Age Discrimination in Employment Act (ADEA), as amended by the Older Workers Benefit Protection Act (OWBPA), you’re going to need a knowing and voluntary waiver. This means, at a minimum, your release must include the following six (6) elements:

It must be easy to understand;
It must refer to claims under the ADEA/OWBPA;
The employee cannot waive rights or claims that may arise after the date the waiver is executed;
The employee can only waive rights or claims in exchange for consideration in addition to anything of value to which the individual already is entitled (i.e., you have to incent the employee to agree to the release);
The employee is advised in writing to consult with an attorney prior to executing the agreement; and,
The employee has at least 21 days (45 days for a Reduction in Force – RIF) within which to consider the agreement, and 7 days after signing the agreement in which to revoke it.

Legal help may be needed

Plus, in a RIF situation, the employer is required to provide the following information to the affected employees:

(A) Any class, unit, or group of individuals covered by such RIF, any eligibility factors for such RIF, and any time limits applicable to such RIF; and,
(B) The job titles and ages of all individuals eligible or selected for the RIF, and the ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the RIF.

Unless, you’ve done this several times before, consider engaging an employment lawyer to walk you through of any release. For example, I can’t begin to tell you the number of times that I’ve seen the sixth bullet incorporated into a release for someone under 40.

You want to make sure that the severance you pay won’t used to subsidize a subsequent age discrimination claim against your company.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.