Idaho Law Blog
By Lane V. Erickson, Attorney
The Older Workers Benefit Protection Act (OWBPA) forbids discrimination by employers based on age when providing employee benefits, like severance. The OWBPA also ensures that no employee is coerced or pressured into signing legal waivers of rights under the Age Discrimination in Employment Act (ADEA).
The OWBPA was enacted to “protect the rights and benefits of older workers” who are being laid off. The U.S. Supreme Court has interpreted the statute as requiring “‘strict, unqualified statutory stricture on waivers’” executed by these workers in exchange for compensation and benefits. The party defending a release’s validity bears the burden of proving compliance.
Under Federal age discrimination laws, employers with 20 or more employees may not discriminate on the basis of age against employees and job applicants who are 40 years old or older. Employment agencies, labor unions and local, state, and Federal government offices are also bound by the law.
The OWBPA is also a Federal age discrimination law. It’s included in the ADEA as an amendment. It prohibits employers from denying employee benefits to older workers based on age. The Equal Employment Opportunity Commission (EEOC) enforces both Acts.
Age discrimination claims are common when there is a reduction in workforce, particularly of long time employees. The OWBPA prohibits discrimination in employee benefits. The OWBPA also established specific requirements for a “knowing and voluntary” waiver of ADEA claims. Employers commonly request such a waiver when offering an early retirement program or when implementing a reduction in workforce, whether voluntary or involuntary.
The OWBPA provides that a waiver of an individual’s rights under the ADEA must be “knowing and voluntary.” The statute specifies that, at a minimum, a release must:
- be “written in a manner calculated to be understood” by the employee;
- refer specifically to rights and claims available under the statute;
- not waive prospective claims;
- provide consideration in exchange for the release beyond something of value the employee is already entitled to;
- advise the employee, in writing, to consult with an attorney;
- give the employee at least 21 days to consider the agreement (or at least 45 days in the case of an exit incentive or other group termination program such as a RIF);
- give the employee at least seven days to revoke the agreement; and
- in the case of an exit incentive or other group termination program, contain information regarding: (a) the “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;” (b) any eligibility factors for the program; and (c) any time limits applicable to the program.
If you are an employer and you are concerned about whether the Older Workers Benefit Protection Act is applicable to you, we can help. Call us toll free at 877-232-6101 or 208-232-6101 for a consultation with Lane Erickson and the Racine Olson team of Employment Law attorneys in Idaho. You can also email Lane Erickson directly at lve@racinelaw.net. We will answer your Idaho Employment Law questions and will help you solve your Idaho Employment Law problems.
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