Time required to review severance & conifentiality agreements w/ legal council
Dawn D
15 Posts
Good morning,
Is there a required period of time employers must give employees over 50yrs. of age to review a severance and confidentiality agreement? If so, please reference this specific law.
Thank you.
Is there a required period of time employers must give employees over 50yrs. of age to review a severance and confidentiality agreement? If so, please reference this specific law.
Thank you.
Comments
Confidentiality agreements are sometimes a part of the severance agreement, but depending on circumstances, they can be a separate agreement. I am sure your legal counsel will properly draft the agreement, but it cannot unnecessarily unfringe upon a person's ability to make a living (according to my sources).
Some other legal experts here may have a different law to cite.
To be enforceable, a release of age discrimination claims, referred to as a waiver, must be knowing and voluntary. The waiver must meet the following requirements of the OWBPA:
The release must be in writing;
The release must be part of an agreement between employer and the employee which is written in plain language geared toward the level of comprehension and education of typical participants;
The release must specifically refer to rights or claims under the Age Discrimination in Employment Act;
The document must not waive rights or claims that may arise after the date the waiver is executed by the individual;
The individual must be advised in writing to consult with an attorney before executing the agreement;
The individual must be given a period of at least 21 days to consider the agreement;
The agreement must provide that the individual may revoke the agreement for a period of at least 7 days following execution of the agreement; and
In the case of a group termination program, the release must accompanied by the required disclosures.
In addition to these basic requirements of the OWBPA, the EEOC has issued new regulations that prohibit a release from:
Requiring an employee to pay back any pay or benefits (referred to as tendering back) received under a release before filing an age discrimination claim and challenging the agreement’s validity;
Requiring an employee to pay damages or attorneys’ fees for simply filing an age discrimination claim and challenging the agreement’s validity; and
Misleading an employee to believe that he or she cannot seek a judicial determination of the validity of the agreement.
The EEOC has issued a guidance on the prohibition against tender back agreements, and other issues concerning ADEA waivers. You can locate this guidance on the EEOC website at: [url]www.eeoc.gov[/url].
Look for our new HR Special Report on Aging to come out in the next few weeks!
Anne Williams
Attorney Editor
Bear in mind that claims other than age discrimination can be released without the waiting period. But if the biggest risk is an Age claim, the release of other claims may not help you.
I suggest you have a lawyer review any release you propose because of the technicalites of the ADEA.
Good Luck!!