The Older Worker's Benefit Protection Act (hereinafter, "OWBPA"), amended the Age Discrimination in Employment Act of 1967 and is one of the major laws an employer must comply with in these economic times when downsizing, laying off, or even terminating employees. The Warn Act or New Jersey Warn will not be covered by this article. Let me start out by saying, as a general rule, severance pay is not required by New Jersey law unless it is contained in a contract, binding manual, or a past practice of the employer can be established.
When an employer lets someone go who is in a "protected class," (in the case of the ADEA, over 40), there is always the possibility that litigation may follow. What the OBWPA does permit is to condition the payment of severance upon a release and waiver of all claims to sue as long as it is severance "plus" (more than which the employee is entitled to). The following are the requirements for a release and waiver to be compliant with the OWBPA:
1. Must be a written agreement understandable by individual or average individuals involved.
2. Must specifically refer to rights arising under ADEA.
3. May not waive any claims arising after the date of waiver.
4. Must provide consideration greater than that to which the employee is already entitled.
5. Must advise the individual, in writing, to consult an attorney prior to executing the agreement.
6. Must provide an individual employee a period of at least 21 days within which to consider the agreement; and
(a) must, if the waivers are requested in connection with offer made to a group or class of employees, provide 45 days to consider the agreement.
7. Must provide employee with seven days following execution of the agreement to revoke it, during which period the agreement is not effective or enforceable until the revocation period has expired.
8. If a waiver is requested in an early retirement program or other program offered to a group of employees, the employer must inform the employees of:
(a) The employees covered by the program, the eligibility factors, any time limits; and
(b) job titles and ages of all individuals eligible for the program, and ages of individuals in same job classifications not eligible for program.
9. May not require a waiver that affects EEOC's rights or the ability of an employee to cooperate with the EEOC.
The same requirements are usually set forth in any release and waiver of an employee's right to sue for discrimination or wrongful termination. On a personal note, some of the best secretaries I have had were older workers. When I first opened my own office in Toms River in the early '90s, I was fortunate enough to hire Marge, a retired New York City legal secretary. She was reliable, prompt, took steno, very professional, and knew a lot more than I did about running a law office. She didn't talk or text on a cell phone or shop online. It's important to remember that an older worker can be a blessing. For more information contact our office in Brick, New Jersey through our website by clicking here or you can give us a call at 732-785-0800.