If you choose to mislead the employee by agreeing to a departure agreement, you can and will likely be held legally liable. Be careful how you draft your departure agreement and consult a professional if you have any uncertainties. A termination agreement is often written as a contract or letter and usually contains a list of numbered paragraphs that include specific terms and conditions regarding the date of termination, severance pay, benefits, references, restitution of company property, and release of claims against the employer. If your employer decides to fire you, they may grant you a termination agreement similar to the following: All termination agreements for employees over the age of 40 must relate specifically to age discrimination rights in labour law. Workers over the age of 40 are covered by the Law on the Protection of Older Workers. When drafting a departure agreement for people over 40, a company must comply with the laws created to protect this class. (i) File an indictment or complaint, including challenging the validity of the waiver agreement, with the EEOC or to minimize the risk of potential litigation, many employers offer money or benefits to employees who leave in exchange for compensation (or „waiver“) for all claims related to the employment relationship; including discrimination actions under civil rights laws administered by the Equal Employment Opportunity Commission (EEOC) – the Age Discrimination in Employment Act (ADEA), Title VII, the Americans with Disabilities Act (ADA) and the Equal Pay Act (EPA).  While it is common for executives to negotiate severance pay terms upon first hiring, other employees are generally offered severance agreements and are asked to sign a waiver at the time of termination. When presented with a departure agreement, many employees wonder: Is it legal? Do I have to sign it? This document answers questions you may have if you are offered a termination agreement in exchange for waiving your claims of actual or potential discrimination. Part II provides basic information on termination agreements; Part III explains when a waiver is valid; and Part IV specifically addresses waivers of age discrimination complaints, which must comply with the provisions of the Older Workers Benefit Protection Act (OWBPA).
Finally, this document includes a checklist of what you need to do before signing a waiver in a severance agreement, and a sample of an agreement offered to a group of employees that gives them the opportunity to resign in exchange for severance pay. While the guidelines should be seen as a resource for employers offering severance arrangements to their laid-off employees, it is also important to note that the EEOC takes questionable positions in its publication. Yes. Even if a waiver meets the requirements of the OWBPA (see question and answer 6 above), a waiver of age-related claims, such as the Title VII waiver and other discrimination claims, is invalid and unenforceable if an employer has used fraud, undue influence, or other inappropriate behavior to compel the employee to sign, or if it contains a hardware error. Omission or false information. In finding that the employee`s waiver was not knowingly and voluntarily waived, one court found that, while the wording of the agreement was „clear and unambiguous,“ it did not explicitly mention the disclosure of complaints of discrimination in the workplace. Given that the employee only attended high school and was not familiar with the law, his argument that he believed he was only releasing claims arising from his voluntary dismissal and the benefit package he accepted was „not an unreasonable conclusion.“  To guide you through this process, we have compiled a list of all the do`s and don`ts to create a waiver of age discrimination and a severance agreement for employees over the age of 40. But first: The EEOC publication focuses on the following requirements for departure agreements and the release of discrimination complaints:  See e.B. Blackwell v.
Cole Taylor Bank, 152 F.3d 666 (7. Cir. 1998) (with the note that employees who make claims because of their non-age may still have to „return“ their consideration) and Hampton v. Ford Motor Co., 561 F.3d 709 (7. Cir. 2009) (in view of the fact that, in the case of Title VII, there is no exception to the rule of return of tenders, the worker must return or at least offer the consideration he has received before calling into question the validity of the waiver); but see Rangel v. El Paso Natural Gas Co. (on the basis that, since the primary purpose of ADEA and Title VII is to make it easier for an employee to challenge discrimination, workers who assert claims under Title VII do not have to repay their severance pay before the action).
In addition, employers must consider a number of decision points when drafting termination agreements, even if their „forms“ do not contain problematic language. For example, for a waiver to be effective, different requirements may apply depending on the case: if you use a single template for all your exit agreements, you are doing it wrong. There are some things you should NOT do in severance agreements for employees over 40. (5) Section 7(f)(1)(H) of the ADEA, which refers to exit incentives or other termination programs offered to a group or class of workers, also includes a requirement that information be „provided in writing in a manner calculated for the average participant.“ The same standards that apply to the similar wording of Article 7(f)(1)(A) of ADEA also apply here.  An agreement may be signed before the end of the 21 (or 45) day period, provided that the employee`s decision is known and voluntary and not by the employer through fraud, misrepresentation, threat to withdraw or modify the offer before the expiry of the 21- or 45-day period, or by providing other conditions to employees; who sign the exemption before the end of that period. 29 C.F.R. 1625.22 (e) (6). No waiver shall affect the rights and obligations of the Commission in the implementation [of ADEA].
A waiver may not be used to justify an interference with a worker`s protected right, to file a complaint or to participate in an investigation conducted by the Commission or in a proceeding conducted by the Commission. (7) Section 7(f)(1)(E) of the ADEA requires that a person „be instructed in writing to consult with a lawyer before entering into the agreement.“ (3) No waiver agreement shall contain a provision imposing a condition precedent, penalty or other restriction that affects a person`s right: similarly, the EEOC`s proposal that claims under ERISA cannot be lifted does not appear to be based on existing legal powers. Although ERISA prohibits certain types of waivers, including waiver of future rights, it is common knowledge that potential ERISA claims may be waived by knowingly and voluntarily releasing. Finally, while many states prohibit the waiver of unemployment and workers` compensation benefits, the EEOC can act in turn generally assuming that such a claim cannot be dropped in any county jurisdiction. You should omit all lint and exaggerations when presenting employees with the termination of employment contracts. Employers should pay attention to the need to give employees time to consider signing a severance agreement, a deadline that varies depending on the age of the employees. This specific legal requirement must be met for an exemption from claims under the Employment Age Discrimination Act (ADEA), as amended by the Older Workers Benefit Protection Act (OWBPA), to be enforceable. (2) To whom the information must be provided. The required information shall be provided to any person in the decision-making unit who is asked to sign a derogation agreement. (ii) If an exemption is requested under an exit incentive or other termination program offered to a group or class of workers, the person must have at least 45 days to review the agreement. The existence of a „program“ depends on the facts and circumstances of the case; However, the general rule is that a „program“ exists when an employer offers additional consideration – or an incentive to resign – in exchange for signing a waiver for more than one employee.
 If, on the other hand, a large employer has five employees in different units for good cause (p.B. poor performance) over several days or months, it is unlikely that a „program“ exists. For exit incentive programs and other termination programs, the employer determines the terms of the termination agreement, which are generally non-negotiable.  Here are the most important things to avoid in your severance agreements for employees over the age of 40: (6) A waiver agreement in accordance with this section that is dealing with EEOC fees does not require the participation or monitoring of the EEOC. 3. The term „exit incentive or other termination program“ includes both voluntary and involuntary programs. While the tribunal recognized that UPS had failed to comply with the OWBPA with respect to a waiver of age discrimination for an older worker, the tribunal found that such non-compliance did not create a separate legal claim for the employee. The consequence of the employer`s non-compliance with the OWBPA is that the separation agreement signed by the employee is not valid to waive ADEA`s claims. Thus, the court dismissed the employee`s request to add an OWBPA claim, finding that a change would be unnecessary if there was no independent claim […].