In keeping with my long-standing commitment to leave legal stuff to lawyers, I offer you today’s tip from Llyod Aubry Jr. and Armilla Staley-Ngomo, two employment attorneys at Morrison & Foerster in San Francisco. I don’t know them personally, but it sounds like they know their stuff; Aubry formerly served as special assistant and counsel to the Secretary of Labor.
Aubry and Staley-Ngomo write that in July, the Equal Employment Opportunity Commission issued new guidance for how employers can ask employees to waive their right to bring lawsuits alleging age discrimination. Although such waivers are legal, the EEOC reminds employers that such waivers must be “knowing and voluntary” by employees who sign them.
The Older Workers Benefit Protection Act – a law approved in 1990 that amended the Age Discrimination and Employment Act to clarify prohibitions against discrimination on the basis of age for employees age 40 and older – lists seven factors that must be satisfied for a waiver of age discrimination claims to be considered “knowing and voluntary.” The waiver must:
1. Be written in a manner that can be clearly understood.
2. Specifically refer to rights or claims arising under the ADEA.
3. Advise the employee in writing to consult an attorney before accepting the agreement.
4. Provide the employee with at least 21 days to consider the offer.
5. Give an employee seven days to revoke his or her signature.
6. Not include rights and claims that may arise after the date on which the waiver is executed.
7. Be supported by consideration in addition to that to which the employee already is entitled.
In addition, Aubry and Staley-Ngomo write, if an employee who is age 40 or over is part of a group termination such as a reduction in force (sometimes referred to as “exit incentive programs”) or another employment termination program, the employer must provide additional information in connection with the waiver, such as details about the selection criteria and the class of employees who were and were not selected for the program. The employer must also give the group 45 days to consider the offer.
Since I recuse myself from all things legalese,
