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Age Discrimination–the Release Myth?

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OK, age discrimination is becoming a bigger and bigger problem. So, we’ll just buy off the old timers. You know what I mean. We’ll pay them some money in separation pay or in a severance package. They’ll sign an agreement containing the magic language required by the Older Workers’ Benefits Protection Act (so many days to review and so many days to revoke, depending on whether it’s the termination of a single employee or a group) and a release of all claims against the employer plus the agreement not to file a charge with the EEOC. It’ll cost us more money as the boomers age. But that’s just the cost of doing business.

Oh really. Just that simple, huh?

Maybe not. The EEOC now takes the postion that it’s impossible for an employee to waive his or her right to file a charge of discrimination with the EEOC, regardless of what an agreement says or how much money you’ve paid the employee. According to the EEOC, requiring such a waiver from an employee is a form of retaliation. The agency would have you believe that the release of an age discrimination claim is a myth. Enforcement Guidance on non-waivable employee rights under Equal

Thus, every charge filed with the EEOC carries two potential claims for …. the charging party has signed a waiver of his or her right to file a charge. 2.
www.eeoc.gov/policy/docs/waiver.html – 21k – CachedSimilar pages

Courts have also begun to scrutinize agreements containing releases of age claims to make sure that everything required by the Older Workers’ Benefits Protection Act for an employer to obtain a binding release has been followed to the letter. And in cases involving RIF’s which are often the subject of age discrimination claims, there’s a lot more required than just the magic language about how much time an employee has to review the agreement and then revoke it. Check out this case reported in the Delaware Employment Law Letter:

Dangerous liaisons: the increased vulnerability of the severance agreement
Delaware Employment Law Letter,Vol. 12, Issue 1, January 2007

And then there’s the mother of all problems when it comes to age discrimination: the class action. Once thought to be out of bounds in age cases, not so any more. They are being filed, and courts are recognizing their legitimacy.

So here’s the scenario from hell. You do a RIF. You get affected employees (most in the protected age group) to sign agreements containing releases. You pay them money, sometimes a fair amount if they have a lot of tenure. Then you get sued by a few of these employees on behalf of all of them saying your releases are no good. The EEOC joins the case. Courts say–what? Not sure yet. But an answer will come, and God help us if it’s the wrong answer. Or as Homer Simpson would say, “D’oh!”

  1. Bill Calles says:

    I was notified on December 5th 2008 that I was being let go on February 4 2009. I recieved a severance package and I had to sign a waiver not to suit AT&T and if I didn’t sign it, I would have to wait till the settlement was final and there was no guaranty. I happen to be the oldest employee on my sales team and I had the most time on the job. I would more info on this issue.

  2. Barbara Placilla says:

    I, too, was laid off from AT&T recently. And I, too, was required to sign a release. And I,too, was the oldest member of my sales team. Can you please provide me with some info as to how/if I can pursue a lawsuit. The majority of the people laid off from my group, or “surplused” as AT&T prefers to call it, were “older workers”. In fact, I was the only person in my title who is 60 and female and I was let go. Nobody else on my team, younger males, were affected. Thanks

  3. John Phillips says:

    If you look at some of the above comments, they should help you in thinking about your options.

  4. I and hundreds of other older workers were part of a RIF at a large corporation when it changed hands. The result was a class action lawsuit filed. It involves age discrimination, pension benefits and a few other laws that were broken. The EEOC had already determined that laws were broken and right to sue was determined before we even started the case. This case has been going on for quite a few years now with all the depositions, expert testimonies, rebuttals, and ensuing mounds of legal paperwork. We are at the stage now where the judge has had all of the documents provided by both the plaintiff and defendant for almost seven months so a determination can be made on class action status.

    My question is…”How long can a judge in federal court take to render a decision on whether or not a case is to be considered a “class action” case so that we can move forward. This is a no-brainer case.

  5. Unfortunately, the short answer, and the correct one, is as long the judge wants to. It’s possible for one side or the other to file a motion or request that the judge take action, but there’s always the fear that it will backfire and make the judge mad. It might also be possible to file something with an appellate court requesting that it require the judge to act, but that’s really risky and might not produce any results. Sorry.

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  1. EEOC Files Class Action Lawsuit Against AT&T for Age Discrimination « Avoid a Toxic Boss - [...] You may be thinking that these older employees surely signed a separation or settlement agreement containing a release and agreeing ...

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