Why Age Discrimination Severance Agreement Releases Are Unique
California’s Labor Code, other laws, and California court decisions provide that some claims cannot be waived by the employee – even if the employer has a broad release.
Examples of claims that an employer can’t ask an employee to waive include:
- Workers’ compensation claims for wage loss and medical benefits due to a workplace or occupational illness. In order to release this type of claim, the employer and employer must enter into a formal Compromise and Release which is separate from a severance agreement release.
- Claims for back wages including overtime.
- Claims for reimbursement where the employee paid for supplies.
- Claims for unemployment insurance.
Releases for employees who are more than 40 years old
Because many companies try to force out older workers in favor of younger ones, the federal Congress enacted the Older Workers Benefit Protection Act. This law works to protect older workers by making sure that any releases they sign are done voluntarily (as opposed to being pressured to sign the release) and are done knowingly (the employee knew his/her rights). Key provisions of this law include:
- The older worker should be given 21 days to review the release.
- The older worker should be given 7 days to revoke it – after it has been signed.
No revocation period is required and less time for review is required if the employee has already filed a lawsuit against the employer. Essentially, if a worker has an active lawsuit for discrimination against an employer, the employee should review the release with his/her employment lawyer before signing the release.
- The release must be such that the average person can understand it. This means no legalese.
- The release should be in writing.
- There must be a consideration (typically an offer of money) in return to the release.
- The release must identify specific rights that the employee may have under the Age Discrimination in Employment Act of 1967 (“ADEA”).
Some releases are broad, others are narrow. In a broad release, the employee basically waives the right to bring any open claims – claims that could have been brought prior to signing the release. A narrow release identifies what specific claims are being released such as an age discrimination claim. Any claim that isn’t specifically listed is considered open. Employers want broad releases. Employees want narrow releases.
Understand how your age discrimination rights apply to severance contracts
It’s hard finding work when you’re older. Workers over 40-years of age need protection. At the law offices of Stephen Danz & Associates, we have offices throughout California. Our attorneys understand severance law and discrimination law including discrimination based on age. Speak with one of our caring lawyers by calling (877)789-9707 to schedule an appointment. We’re ready to help you get justice. Se habla espanol.