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Waivers of ADEA protection require special legal consideration

In many workplaces across the nation, older employees are treated with the necessary respect by both their colleagues and employers, with each valuing their extensive experience, carefully honed skills and unique insight that can only come from years on the job.

As we've discussed before, however, there are workplaces where these attributes brought to the table by older workers are not valued and where, in fact, their age is actually used against them in employment-related decisions.

While these scenarios are both shocking and unfortunate, the good news is that older workers are offered significant protection under federal law in the form of the Age Discrimination in Employment Act or ADEA.

In general, the ADEA, which covers employers with 20-plus employees, expressly prohibits discriminatory actions being taken against either prospective employees or employees age 40 and over due to the their age. Indeed, the actions covered by the ADEA include hiring, training, benefits, promotion, compensation, layoffs and termination, to name only a few.

Given the extensive protections afforded by the ADEA, it only makes sense that those severance offers or other special requests that ask employees to waive these protections must be subject to a rather rigid set of requirements.

Indeed, the ADEA, as amended by the Older Workers Benefit Protection Act of 1990, mandates that any such severance offer or special request seeking a waiver must meet the following conditions:

  • It must be in writing and comprehensible.
  • It must make specific reference to ADEA-related rights and/or claims.
  • It must not waive future rights or claims.
  • It must recommend that an individual seek legal counsel prior to signing.
  • It must be executed in exchange for valuable consideration.
  • It must give the individual a minimum of 21 days to consider signing and a minimum of seven days to revoke after signing.

What all of this serves to highlight is that if you've been presented with such an agreement or feel that you've been victimized by age discrimination in any form, consider speaking with an experienced legal professional as soon as possible.

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