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John, Employment Lawyer
Category: Employment Law
Satisfied Customers: 5728
Experience:  Exclusively practice labor and employment law.
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My offer letter includes a severance payment of 3 months

Customer Question

My offer letter includes a severance payment of 3 months provided I execute a binding release.
My separation agreement has "General Release and Waiver of Claims" which includes everything,including claims based on age or age discrimination act, older workers benefits protection act etc.
I looked at General Rules for employees over 40 and OWBPA act says among other things:
1.The Company not require the employee to waive rights or claims arising after the date the employee signs release. If the company wants it is it not illegal? Unenforceable?
2. The law also states the company must give 21 days notice and must state the employee has 7 days to change his mind and revoke
3. And it says that if these time periods are not specifically included in the release, then the release is unenforceable.
Is my understand correct that even if I sign the agreement as it is (meaning waiving the age discrimination and older worker benefits protection act), it is not enforceable by the company because they didn't give 21 days notice nor did they specifically say in the separation agreement that I have 7 days to change my mind and revoke it? Please clarify. Thanks.
Submitted: 2 years ago.
Category: Employment Law
Expert:  John replied 2 years ago.

Hi, thanks for submitting your question today. My name is***** have over 13 years of legal and consulting experience in this area. I’m happy to assist you with your question today.

Yes if your release does not have the 6 elements of the OWBPA in it, then it is unenforceable by the employer in regard to a possible age discrimination claim.

  1. it must be easy to understand;
  2. it must refer to claims under the ADEA/OWBPA
  3. the employee cannot waive rights or claims that may arise after the date the waiver is executed;
  4. the employee waives rights or claims only in exchange for consideration in addition to anything of value to which the individual already is entitled (i.e., you have to incent the employee to agree to the release);
  5. the employee is advised in writing to consult with an attorney prior to executing the agreement; and
  6. the employee has at least 21 days (45 days for a RIF) within which to consider the agreement, and 7 days after signing the agreement in which to revoke it.

I believe this answers your question. However, if you need clarification or have follow-up questions regarding this matter, I will be happy to continue our conversation – simply reply to this answer. If you are otherwise satisfied with my response, please leave a positive rating as it is the only way I am able to get credit for my answers. Thank you, ***** ***** wish you all the best with this matter.

Expert:  John replied 2 years ago.

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