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JB Umphrey
JB Umphrey, Lawyer
Category: Employment Law
Satisfied Customers: 20232
Experience:  Assisting employees and employers for over 14 years.
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After 20 yrs. I am being forced to hand in my (retirement)

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After 20 yrs. I am being forced to hand in my (retirement) or be fired on Mon. According to my boss I dont know how to manage my bldg. If I dont accept his termshe he will fire me and I will have fifteen days to get off the property. If I accept his terms of retirement he may allow me to work another month for an easier transition . I am 77 yrs old & know that no one will hire me. My apt. is included w/my job. I have no family that I can go to. Can you help? I asked for more time but he refused whch did not allow time for legal consultation. He sprang this on me on Fri. at 2:30 PM. Should I sign the retirement paper.? He is expecting an ans. first thing Mon. Thank you
Submitted: 2 years ago.
Category: Employment Law
Expert:  JB Umphrey replied 2 years ago.
Hi and thank you for using JustAnswer!

I am sorry to learn of your circumstances. Please clarify: does the retirement paperwork include a promise to not sue?
Customer: replied 2 years ago.
I havent seen it yet. He wants me to sign on Mon. AM
Expert:  JB Umphrey replied 2 years ago.
Thank you. Are there 20 or more employees that work there?
Customer: replied 2 years ago.
In my immediate bldg I supervise 9 emps. The co. itself is a very large mgmt. co. & has hundreds of emps. and MANY PROPERTIES hOWEVER THEY DO NOT own this prop. This is a rental apt. bldg. I have 210 apts.
Expert:  JB Umphrey replied 2 years ago.
I'm sorry, I don't understand.

The company that you work for and who is demanding your resignation .... does that company employ at least 20 employees?
Customer: replied 2 years ago.
Yes Over 100. Please bear w/ me as I'm not too knowledgeable on computer workings
Expert:  JB Umphrey replied 2 years ago.
Thank you for the clarification.

There is a federal law in play there. Under the Age Discrimination in Employment Act, your employer cannot force you to immediately sign a severance agreement if the agreement includes a promise to not sue.

According to the U.S. Equal Employment Opportunity Commission, if your agreement includes a waiver of age claims, then there are seven factors that must be satisfied. At a minimum:

1. A written waiver must be written in a manner that can be clearly understood. EEOC regulations emphasize that waivers must be drafted in plain language geared to the level of comprehension and education of the average individual(s) eligible to participate. Usually this requires the elimination of technical jargon and long, complex sentences. In addition, the waiver must not have the effect of misleading, misinforming, or failing to inform participants and must present any advantages or disadvantages without either exaggerating the benefits or minimizing the limitations.

Example : An employee, who had worked for his company for 28 years, was selected for an involuntary RIF and asked to sign a "General Release and Covenant Not to Sue” (severance agreement) in exchange for money. The severance agreement provided, among other things, that the employee “released” his employer “from all claims . . . of whatever kind,” including claims under the ADEA and any other federal, state, or local law dealing with discrimination in employment. The severance agreement also referenced “covenants not to sue” and stated that “[t]his covenant not to sue does not apply to actions based solely under the [ADEA].” After reading the severance agreement, the employee asked his supervisor if the exception for ADEA claims contained in the covenant not to sue meant he could sue the employer if his suit was limited to claims under the ADEA. His supervisor contacted the employer’s legal department and then sent the employee an e-mail stating, "Regarding your question on the General Release and Covenant Not to Sue, the wording is as intended. . . . . The site attorney was not comfortable providing an interpretation for you and suggested you consult with your own attorney."

The employee signed the agreement, collected severance benefits, and then sued his employer for age discrimination under the ADEA. A court held that the severance agreement was not enforceable because it was not written in a manner calculated to be understood.

2. A waiver must specifically refer to rights or claims arising under the ADEA. EEOC regulations specifically state that an Older Workers Benefit Protection Act waiver must expressly spell out the Age Discrimination in Employment Act (ADEA) by name.

3. A waiver must advise the employee in writing to consult an attorney before accepting the agreement.

Example: A release stating: “I have had reasonable and sufficient time and opportunity to consult with an independent legal representative of my own choosing before signing this Complete Release of All Claims,” did not comply with OWBPA’s requirement that an individual be advised to consult with an attorney. Although the voluntary early retirement agreement advised employees to consult financial and tax advisors, to seek advice from local personnel representatives, and to attend retirement seminars, it said nothing about seeking independent legal advice prior to making the election to retire and accepting the agreement.

4. A waiver must provide the employee with at least 21 days to consider the offer. The regulations clarify that the 21-day consideration period runs from the date of the employer’s final offer. If material changes to the final offer are made, the 21-day period starts over.

5. A waiver must give an employee seven days to revoke his or her signature. The seven-day revocation
period cannot be changed or waived by either party for any reason.


6. A waiver must not include rights and claims that may arise after the date on which the waiver is executed. This provision bars waiving rights regarding new acts of discrimination that occur after the date of signing, such as a claim that an employer retaliated against a former employee who filed a charge with the EEOC by giving an unfavorable reference to a prospective employer.

Example: An employee who received enhanced severance benefits in exchange for waiving her right to challenge her layoff later filed suit. In finding the waiver valid, the court noted that because the waiver clearly stated that she was releasing any claims that she “may now have or have had,” it did not require her to waive future claims hat may arise after the waiver was signed.

7. A waiver must be supported by consideration in addition to that to which the employee already is entitled.

If a waiver of age claims fails to meet any of these seven requirements, it is invalid and unenforceable. In addition, an employer cannot attempt to “cure” a defective waiver by issuing a subsequent letter containing OWBPA-required information that was omitted from the original agreement.
____________________________

So, as you can see, as a general matter, under federal law, your employer cannot require your immediate signature on a document if that document also includes language which says that you will not sue.

You may want to print off this page and share it with your employer if they don't believe you: http://www.eeoc.gov/policy/docs/qanda_severance-agreements.html#IV

It has been my pleasure to assist you today with your information needs. It is my goal that you are satisfied with your information needs. No expert can promise you an answer that is favorable to your circumstances. But I will do my very best to explain the legal principles that are related to the facts you’ve described so that you can better understand the “why” of things.

If you have a follow-up question, please reply and ask it.

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JB Umphrey, Lawyer
Category: Employment Law
Satisfied Customers: 20232
Experience: Assisting employees and employers for over 14 years.
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