Terminating the Employment Relationship

For early retirement incentives or other group exit programs, employers should be sure to provide all eligible employees with a written document which informs the employees of the class, unit or group of individuals who are eligible for the program; the eligibility factors; and the time limits for the program. The employer must also list the job titles and ages of each individual eligible or selected for the program, and the job titles and ages for each employee not eligible or selected. Employers should be careful to not group or cluster job titles or ages. In addition, a waiver may not be used to justify interfering with the protected right of an employee to file a charge or participate in an investigation or proceeding conducted by the EEOC. In other words, a waiver cannot: (1) require an employee to waive any right to file a charge with the EEOC, (2) state that the waiver itself violates the OWBPA, or (3) require an employee to waive any right to participate in an EEOC investigation. However, at least one court has held that if a waiver includes an agreement by the employee to waive his or her right to file a charge with the EEOC or participate in an investigation, it does not render the rest of the waiver relating to age discrimination claims under the ADEA invalid. 300 Furthermore, the EEOC has taken the position that employers may not practice a policy of refusing to re-hire former employees who accepted a severance package or retirement incentive because such practices have a disparate impact on persons over the age of 40. It remains to be seen if a court will agree with EEOC’s position. 301 The following table is a list of the statutory requirements for a legally enforceable waiver and release of ADEA claims. The first column is the actual statutory requirement under the OWBPA. The second column provides the correct way to apply the requirement in an actual early retirement incentive agreement. The last column is an example of the wrong way to apply the requirement to an early retirement incentive agreement.

ADEA Waiver Requirement

Correct Language [or Correct Procedure]

Incorrect Language [or Incorrect Procedure] “Employees who heretofore have been categorically described and therein meet the criteria for optional selection of the reward program.…” “Employee agrees to waive all claims against the city for discrimination, harassment, or retaliation….” 302

“is written in a manner calculated to be understood by such individual, or by

“Employees who are at least 50 years of age and have at least 10 years of service with the city are eligible for the early retirement incentive” “Employee agrees to waive all claims, complaints, or lawsuits against the city arising out the employee’s employment or this

the average individual eligible to participate”

“specifically refers to rights or claims arising under this chapter”

severance agreement, including claims for

discrimination, harassment, or retaliation under the Age Discrimination in

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 86