REQUIREMENTS IF ONLY ONE STAFF MEMBER IS TERMINATED: below, the OWBPA requirements for each employee who is terminated (i.e. Not part of a group): given EEOC`s stake in Hester S., an agency`s failure to comply with OWBPA`s strict waiver guarantees will now invalidate a settlement agreement regarding ADEA claims, whether or not the employee has submitted an ADEA claim at the time of performance of the contract. This change to the Commission`s precedent is in line with the OWBPA Congress` objective of prohibiting employers from discriminating against people aged 40 and over on the basis of their age – no exceptions. Yes. Although your termination contract may use broad language to describe the rights you disclose (see Example 1), you can still file a complaint with the EEOC if you believe that you have been discriminated against or unfairly terminated during your employment relationship.  Furthermore, no agreement between you and your employer can restrict your right to testify, support or participate in any investigation, hearing or proceeding conducted by the EEOC in accordance with ADEA, Title VII, ADA or EPO. Any provision of a waiver that attempts to waive these rights is invalid and unenforceable.  Of course, as with any contract, there must be a legal reflection to seal the declassification contract. The quid pro quo is something of a value (usually money) that passes between the employer and the outgoing worker like severance pay.
It must be a severance pay that is not already due to the worker on the basis of the employee`s manual or an employment contract. The consideration must go beyond what the employer already gives to the outgoing worker. However, in Hester S.v. EEOC, the Commission annulled that interpretation of the OWBPA. In particular, the Commission found that « the OWBPA applies to the surrender of ADEA rights or claims, regardless of whether the rights or claims were collected prior to the execution of the waiver agreement ». Indeed, in Hester S., in April 2011, the complainant established contacts with an EEO adviser, alleging discrimination on the basis of disability and in retaliation for protected EEO activities when a performance improvement plan was issued to her and she was denied appropriate measures. In June 2011, the complainant extended her bases to race, national origin, gender and age. In May 2011, the complainant received a settlement agreement that she signed. The settlement agreement states, among other things, that in 1990, Congress amended ADEA by adding the Older Workers Benefit Protection Act (OWBPA) to clarify the prohibitions on age discrimination. OWBPA establishes specific requirements for the « voluntary and scientific » sharing of ADEA rights, to ensure that a staff member has every opportunity to make an informed decision as to whether or not to sign the waiver. There are additional obligations under the law when waivers are requested by a group or class of employees. See « Additional requirements for collective redundancies of employees aged 40 and over » in point IV.B.
REQUIREMENTS IN THE EVENT OF TERMINATION OF A GROUP (I.E. TWO OR MORE EMPLOYEES): for a group authorization (if 2 or more employees are terminated), the above requirements apply, with the exception that the 21-day period for the review of the exemption agreement is extended to 45 days and the employer must also attach a disclosure form to this declassification agreement;  In this document, the term « severance pay » is used to describe any involuntary or cancellation agreement between an employer and a worker that requires the worker to waive the right to seek redress for discrimination. . . .