Time required to review severance & conifentiality agreements w/ legal council

Dawn D

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.

Rockie

It probably falls under the Age Discrimiation in Employment Act (ADEA). If a person is over 40 years of age, they should be given 21 days to consider the severance package and then 7 additional days after they sign the agreement to retract.

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.

awilliams

You need to be concerned that you are in compliance with the Older Workers Benefit Protection Act (which amended the ADEA) which requires that certain time limits be given to let older workers review any releases of age discrimination claims. The OWBPA addresses four different release scenarios: 1) a release by an involuntarily terminated employee who has not filed an EEOC charge or lawsuit; 2) releases by employees involuntarily terminated pursuant to group reductions in force and who have not filed age charges or lawsuits; 3) releases in settlement of disputed claims, either pending EEOC charges or civil actions; and 4) releases by employees who have voluntarily opted to sever employment pursuant to an incentive program.

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

Theresa Gegen TX

In addition under the Age Discrimination in Employment Act, if the company seperating more than one person (for example in a RIF), the persons 40 and over must be given 45 days to consider the release and be given specific information about the group subject to the RIF (including the ages of persons retained and persons riffed). (The seven day revocation period also applies).

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!!