WAIVERS OF RIGHTS AND CLAIMS UNDER
THE OLDER WORKERS BENEFIT PROTECTION ACT OF 1990
On
December 11, 2000, the U.S. Equal Employment Opportunity Commission ("EEOC")
issued a new regulation regarding waivers of rights and claims under the Older
Workers Benefit Protection Act of 1990 ("OWBPA"). OWBPA, which
amends the waiver provisions of the Age Discrimination in Employment act of
1967 ("ADEA"), was enacted in part to protect older workers from
being coerced or manipulated into signing agreements which waived or released
their rights under the ADEA. The standardized severance agreements (which
typically contain waiver or release provisions) used by many employers do not
comply with the new EEOC regulation. It is extremely important, therefore,
that employers familiarize themselves with the specific provisions of the EEOC’s
new regulation and revise their standardized severance agreements so that such
agreements comply with the provisions of the regulation. This article will
provide employers with a brief introduction
to some of the more important provisions of the EEOC’s new regulation.
Under OWBPA, a waiver must, among other things, be knowing and voluntary. In addition, the ADEA requires that a waiver must be given in exchange for consideration. The EEOC’s new regulation provides that an employee who alleges he or she did not sign a waiver agreement knowingly and voluntarily is not required to give back the consideration that the employee was given for the waiver before the employee files a lawsuit or a charge of discrimination with the EEOC or any state of local agency. In other words, simply because an employee retains the consideration given for the waiver, does not mean that he or she loses any right to challenge, or has in any way ratified, the waiver agreement.
Furthermore, under the new regulation, a waiver cannot adversely limit an employee’s right to challenge a waiver agreement. That is, an employer is prohibited from imposing any condition, penalty or other limitation on an employee’s right to challenge a waiver agreement. Thus, a waiver agreement which requires an employee to return the consideration he or she was given for the waiver, or which permits an employer to recover attorneys’ fees if the employee files a lawsuit or charge of discrimination under the ADEA, is not in compliance with EEOC’s new regulation.
Whyte Hirschboeck Dudek SC 2001
Presented at www.HRSteam.com