Which of the following is true about the Older workers Benefit Protection Act?

The federal Older Workers Benefit Protection Act is an amendment to the Age Discrimination in Employment Act (ADEA). Under this law, it is illegal for your employer to discriminate in benefits based on your age (assuming that you are 40 or older), focus on older workers for layoffs, or ask older workers to waive their rights under the ADEA without following rules meant to protect older workers. If you believe that your employer violated the Older Workers Benefit Protection Act, you can file a charge with the Equal Employment Opportunity Commission (EEOC). At Wiley Walsh, P.C., our Austin age discrimination lawyers can help you determine whether you have a claim and develop a strategy to pursue it.

The Older Workers Benefit Protection Act (OWBPA) amended the ADEA in 1990. The ADEA prohibits age discrimination against workers who are 40 or older. Younger workers are not protected. The purpose of the OWBPA is to guard older workers and make sure that they are not subjected to age discrimination in connection with their benefits.

Under this law, employers are supposed to pay the same amount for each benefit that they provide to older workers as they pay for younger workers. However, these rules are complicated. For example, there is language that addresses the added cost of providing specific benefits like life insurance to an older employee. In another example, employers are permitted to give older workers lesser benefits in some situations in which the older worker receives other benefits that make up for the loss of the lesser benefits.

Often, employers understand that they may be subject to discrimination lawsuits after they lay off or terminate a worker who has a protected characteristic, such as an older age. To address this potential liability, they may try to have a worker sign a severance agreement, in which the worker releases their claims in exchange for severance payments or early retirement benefits. However, employers are required to comply with the OWBPA when asking a worker to waive their ADEA rights.

The most important requirement related to an employer's efforts to have an employee waive their rights with regard to a potential ADEA age discrimination claim is that the waiver must be knowing and voluntary. There are also other specific requirements that your employer must follow. If these requirements are not followed, the waiver is not considered knowing and voluntary.

For example, when there is a layoff program or an early retirement plan, an employer is supposed to provide you with data about which ages the terminated and retained employees are if you are deciding whether to release your age claims. The OWBPA also requires that you get 21 days to determine whether to sign a waiver that you were given if it was given just to you. However, if the waiver was presented to a group, as part of a group layoff, the group gets 45 days. The agreement should provide that for a period of at least seven days after you sign, you can change your mind and revoke the agreement, and the agreement will not become effective until those seven days have expired. Your employer must also offer you something valuable in exchange for signing a waiver — something that you are not already owed.

If you believe that your employer violated the Older Workers Benefit Protection Act, you must file a charge with the EEOC. You may be able to pursue a lawsuit if the EEOC does not resolve your claim appropriately. For age discrimination, you might be able to recover back pay, an amount equal to the back pay award for a willful violation, and attorneys' fees.

While the OWBPA is a federal statute, state law also prohibits age discrimination and may provide different remedies

If you suspect that you were a victim of age discrimination, the Older Workers Benefit Protection Act may apply to you. Before signing a severance agreement or agreeing to take a forced retirement, you should consult an experienced Austin lawyer. Wiley Walsh, P.C. also represents workers who are seeking an employment attorney in cities such as Georgetown, Round Rock, Cedar Park, Pflugerville, Leander, Del Valle, Kyle, San Marcos, San Antonio, New Braunfels, and Fredericksburg. Contact us at (512) 271-5527 or via our online form for an appointment.

In order for a release of claims for age discrimination to be valid, it has to be voluntary and knowing. This means that it must meet the following minimum standards:

• It must be in writing;
• It must be written in an easily understandable manner;
• It must use plain language;
• It must not be misleading to the employee who will execute the release;
• It must not exaggerate the benefits that the employee will receive in exchange for signing it;
• It must refer to the ADEA specifically;
• It must advise the worker to talk to an attorney before signing it;
• It must not require employees to waive their claims or rights that may arise after the date that it is signed.

The worker must receive additional consideration that goes beyond any amounts to which he or she was already entitled.

Employers are required to give their workers enough time to consider the release. Single employees must be given a minimum of 21 days to consider the releases beginning with the date of the employer’s final offer. After the employee has signed a release, he or she will then have a seven-day period within which he or she may revoke his or her agreement. If the release does not include these time periods, it will be unenforceable.

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