Terminating the Employment Relationship

circumstances” test to consider non -statutory factors in assessing the enforceability of an ADEA waiver. These factors may include fraud, duress, or mutual mistake in entering into the waiver and release. 333

An employee may challenge the enforceability of an ADEA waiver that does not meet the minimum requirements without returning the consideration (e.g., money) received from the employer. 334

LCW Practice Advisor

Ellison v. Premier Salons Inter., Inc. 335 Premier Salons informed Ellison he was to be terminated. On June 20, 1995, Premiere Salons provided Ellison with a “Separation Agreement and Release of Claims” that included a severan ce package and a waiver of ADEA claims. Soon after, Premiere Salons learned that Ellison made defamatory statements about the company. On July 6, 1995, the Vice President called Ellison and informed him that Premiere Salons was revoking the agreement, which Ellison had not yet signed. Ellison sued alleging that the company could not revoke the agreement for 21 days because the minimum requirements of an ADEA waiver allowed him to consider it for 21 days before signing. The Court disagreed, finding that common law contract principles, which allow an offeror to revoke an offer before it is accepted, applied. Thus, Premiere Salons could revoke the offer at any time during the 21-day period if the employee had not yet signed the agreement. American Airlines, Inc. v. Cardoza-Rodriguez 336 American Airlines offered eligible employees a Voluntary Early Retirement Program (VERP). American provided employees with a booklet that provided the “Terms and Conditions” of the VERP. It warned employees to read materials carefully. In order to participate in the program, an employee was required to sign an agreement and release, which American did not provide to the employee until their last day of employment. The release stated, “I have had reasonable and sufficient time and opportunity to consult with an independent legal representative of my own choosing before signing this Complete Release of All Claims.” The VERP booklet did not , however, explicitly advise the employees to consult an attorney. After accepting the VERP and resigning, a group of former employees brought suit alleging, in part, that the release was not knowing and voluntary. The Court held that the release did not sufficiently advise employees to consult an attorney prior to signing the release. A waiver is not knowing and voluntary unless the individual is advised in writing to consult with an attorney prior to executing the agreement.

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