An employer may ask an employee to waive his/her rights or claims under the ADEA either in the settlement of an ADEA administrative or court claim or in connection with an exit incentive program or other employment termination program. The 1990 amendments to ADEA set out minimum requirements that must be met in order for a waiver to be valid. These waiver requirements are:
- Must be in writing and be understandable. This means written in plain language, no legalese.
- Must specifically refer to ADEA rights or claims. A general release will not met ADEA standards.
- May not waive rights or claims that may arise in the future.
- Must be in exchange for valuable consideration. If you were entitled to certain benefits anyway, and did not receive anything additional in return for signing a waiver, it is not valid under the ADEA.
- Must advise you in writing to consult an attorney before signing the waiver. While you do not have to consult with an attorney, and may choose not to, you must have been advised in writing to consult an attorney.
- Must provide you with at least 21 days to consider the agreement and at least 7 days to revoke the agreement after signing it.
Waiver of Benefits is a Hot Button Topic
The waiver of benefits for older workers has become a hot button topic, not only because of the current recession, but because the baby boomer generation is getting increasing older. Lawsuits claiming age discrimination continue to grow, especially concerning benefits. Case law involving valid and invalid waivers can be complicated for the employee and the employer. Good drafting is important.
Getting Help with Age Discrimination
The 1991 amendments to ADEA indicate specifically that if you are considering waiving ADEA rights that legal counsel should be consulted. It is recognition of the serious nature of your action. Do not ignore this warning. Consult a lawyer if you believe you are being discriminated against because of your age in benefits. The courts have strict rules about how and when benefits can be waived. Legal consultation is your best protection if your employer asks you to wave any rights.
1990 amendments to the ADEA and the Civil Rights Act of 1991 protect older workers against age discrimination in relation to benefits and make these cases easier to prove. Competent legal counsel is essential to protect your rights in this area