It is no surprise that older workers are frequently the first to be laid off by employers. Employers will frequently offer some money in a severance agreement in return for the terminated employee’s waiving their right to sue their employer. There are strictly regulated federal mandates for an employee’s waiver of claims of a right to sue to be held valid for those who are 40 years of age and over. If these factors as enumerated in the Older Workers Benefit Protection Act, are not met, the waiver is not valid, and courts have held such waivers to be unenforceable. Age discrimination is on the rise. See NJ Employment Attorney, Older Employees Denied Promotions, and these types of agreements waiving rights are becoming much more prevalent.
The Older Workers Benefit Protection Act (OWBPA) is a federal law, not a New Jersey state law, originally enacted on October 16, 1Employment/Civil Right990, which amended the Age Discrimination in Employment Act of 1967 (ADEA). The ADEA’s prohibitions against age discrimination applies to individuals at least 40 years of age and older. (Note the New Jersey state law NJLAD does not have this limitation of 40 years of age but is much broader and applies to NJ employees of any age.) The OWBPA, amending the ADEA, applies to all individuals in all states who are age 40 and over. OWBPA established specific criteria for waivers of age discrimination claims to be valid in severance agreements, including review and revocation periods for workers 40 and older. New Jersey Age Discrimination Lawyer.
Don’t sit on your rights. If your employer has discriminated against you because of your age, you should contact this law firm today for a free consultation. I accept cases from all over NJ and have locations in Southern, Central and Northern NJ to meet with clients. Employment/Civil Rights Law. If you are experiencing such discrimination, you should contact this office immediately at 201 599-9600 for a free consultation.
What Is Necessary for a Valid Waiver?
Under the Older Workers Benefit Protection Act, 29 USCS 626(f)), an individual may not waive any right or claim under the Age Discrimination in Employment Act (ADEA) (29 USCS 621 et seq.) unless the waiver is knowing and voluntary, and a waiver may not be considered knowing and voluntary without satisfying various enumerated minimum requirements.
Specific Criteria under OWBPA for Waivers of Age Discrimination Claims to Be Valid
A waiver of claims is not valid unless all of the factors as enumerated in f) Waiver, are met.
Section f) waiver requires in part that an individual may not waive any right or claim under this Act unless the waiver is “knowing and voluntary”.
What are minimum requirements for “knowing and voluntary”?
(A) A waiver of claims may not be considered knowing and voluntary unless at a minimum, it is written in a manner to be understood by the worker; the waiver is part of an agreement between the individual and the employer, written in a manner calculated to be understood by such individual, or by the average individual eligible to participate.
(B) The waiver of claims specifically refers to the ADEA claims being released under the OWBPA;
(C) The individual does not waive rights or claims that may arise after the date the waiver is executed;
(D) the employee waives rights or claims only in exchange for something of value, in addition to anything of value to which the employee already is entitled;
(E) the employee must be advised in writing to consult with an attorney prior to executing the agreement;
(F) A period to consider the offer- the agreement must allow 21 days to consider the offer if one employee, or 45 days to consider if a group or class of employees termination or an exit incentive program. The statute states “(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) Time allowed or employee to revoke the agreement: The agreement must provide 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.
Where Extra Disclosure is Required
For exit incentive programs or group terminations, OWBPA requires additionally that the employer must provide information about the decisional unit, eligibility factors, time limits, job titles, and the ages of those selected and not selected.
Older female employees are frequently seen as less valuable and more disposable than are older male employees. NJ Employment Attorney, Older Female Employees Suffer Discrimination, Compounded Effect of Age and Sex Discrimination.
General Contract Principles May Be Set Aside.
The Older Workers Benefit Protection Act 29 USCS 626(f), sets up its own regime, separate and apart from general contract law and incorporating no exceptions or qualifications, for assessing the effect of waivers of claims under the Age Discrimination in Employment Act, 29 USCS 621 et seq. See also Unequal Pay and Wage Claims - Diane B. Allen Equal Pay Act.
Don’t Sit on Your Rights
I have represented older employees who were illegally discriminated against by their employers, and was successful in recovering financial compensation for their emotional pain and suffering and moneys for lost wages, both for past lost wages and projected future lost wages. If you think you are being discriminated against, you should contact this office immediately for a free consultation. I accept discrimination and whistleblower cases from all over New Jersey and have locations in Southern, Central and Northern NJ to meet with clients.
Contact Hope A. Lang, Attorney at Law today for a free consultation.
Hope A. Lang, Attorney at Law represents workers throughout the entire state, including Hackensack, Jersey City, Newark, Irvington, Orange, East Orange, Trenton, Paterson, Montclair, Elizabeth, North Brunswick, Cherry Hill, Vineland, Union, Plainfield, Hamilton Township, Lakewood, Edison, Parsippany-Troy Hills, Franklin, Lakewood, and every NJ County, including Bergen, Hudson, Middlesex, Essex, Monmouth, Somerset, Ocean, Union, Camden, Passaic, Morris, Gloucester, Atlantic, Burlington, Camden Counties.