Age Discrimination–the Release Myth?
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 – Cached – Similar 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:
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!”