Terminating the Employment Relationship

The following table is a list of the statutory requirements for a legally enforceable waiver and release of ADEA claims. The first column is the actual statutory requirement under the OWBPA. The second column provides the correct way to apply the requirement in an actual early retirement incentive agreement. The last column is an example of the wrong way to apply the requirement to an early retirement incentive agreement.

ADEA Waiver Requirement

Correct Language [or Correct Procedure]

Incorrect Language [or Incorrect Procedure] “Employees who heretofore have been categorically described and therein meet the criteria for optional selection of the reward program. …” “Employee agrees to waive all claims against the city for discrimination, harassment, or retaliation… . ” 310

“is written in a manner calculated to be understood by such individual, or by

“Employees who are at least 50 years of age and have at least 10 years of service with the city are eligible for the early retirement incentive” “Emp loyee agrees to waive all claims, complaints, or lawsuits against the city arising out the employee’s employment or this discrimination, harassment, or retaliation under the Age Discrimination in Employment Act, the Older Workers Benefit Protection Act, and the Fair Employment and Housing Act… . ” “In consideration for this waiver and release, employee will receive an early retirement incentive equal to $5,000 for each full year of service with the city… . ” “ATTENTION: Read this agreement carefully. You are advised to consult with an attorney prior to signing this agreement… . ” severance agreement, including claims for

the average individual eligible to participate”

“specifically refers to rights or claims arising under this chapter”

“only in exchange for consideration in addition to anything of value to which the individual already is entitled”

“In consideration for this wavier and release, employee will receive a cash-out of all accrued, but unused vacation leave… . ” 311 “By signing below, employee avers that he has had an opportunity to consult an attorney prior to

“the individual is advised in writing to consult with an attorney prior to executing agreement”

execution of this agreement.” 312

Terminating the Employment Relationship ©2022 (s) Liebert Cassidy Whitmore 88