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Rights under the Older Workers Benefit Protection Act (OWBPA): Even if you signed a release, an employer’s failure to meet specific requirements may allow you to seek additional severance for age discrimination.

The Older Workers Benefit Protection Act (OWBPA) is designed to protect the rights and benefits of workers 40 years old and up. Congress imposed specific duties on employers who seek releases of certain claims created by statute. Congress delineated these duties with precision and without qualification: An employee does not not waive an age discrimination claim unless the employer complies with the OWBPA.

In Oubre v. Entergy Operations, 522 U.S. 422, 427 (1998), the employee, after receiving the last severance payment following her termination, filed suit for age discrimination. The employer claimed the employee ratified the signed release by retaining the severance payment. The employer also insisted the release barred the lawsuit unless, as a precondition to filing suit, the employee refunded the monies received. The U.S. Supreme Court disagreed, and ruled the the signed release of claims could not bar the employee’s age discrimination claim.

The OWBPA requires a release of age discrimination claims to include these specific criteria before a release becomes valid:

 (1) The waiver is part of an agreement that is written in a manner that is easily understood.

(2) The waiver specifically refers to rights or claims arising under the OWBPA.

(3) The employee is not required to waive rights or claims that may arise after the date the waiver is executed.

(4) The employee waives legal rights or claims only in exchange for financial or other consideration to which the employee is not already entitled.

(5) The agreement tells the individual in writing that the employee may consult with an attorney prior to executing the agreement.

(6) The employee is given at least 21 days to consider the agreement. OR, if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group of employees, the employee must be given at least 45 days to consider the agreement.

(7) The agreement provides that for a period of at least 7 days following the execution of such agreement, the individual may revoke the agreement. The agreement is not effective or enforceable until the revocation period has expired.

(8) If the employer asks for a waiver of legal claims in connection with an exit incentive or other employment termination program offered to a group or class of employees, the employer must also tell the employee in writing about:

(i) The specific class, “decisional or business unit”, or group of individuals covered by the layoff, all eligibility factors and time limits for applicable to such program.

(2) The specific 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.

Pamela A. Smith
Law Office of Pamela A. Smith
233 Needham Street, Suite 540
Newton, MA 02464


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