Can an Employee Waive his Right to Age Discrimination Claim?

Mark S Guralnick

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Family Law Attorney

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Posted over 4 years ago. 3 helpful votes

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Rule 1: Knowing and Voluntary

Federal law says that an employee can waive his age discrimination claim only if he does so knowingly and voluntarily. This means, at the outset, that the agreement must be written in a way that the employee will understand what he is giving up.

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Rule 2: Consideration

An employer cannot ask an employee to waive his age discrimination claim for free. He must give him some kind of consideration for the waiver -- a payment, a severance, something of value.

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Rule 3: Attorney

The employer must give the employee notice in writing of his right to consult an attorney before waiving his right to make an age discrimination claim.

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Rule 4: The 21-Day Rule

The employee must be given at least 21 days within which to consider the agreement; or if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the individual is given a period of at least 45 days within which to consider the agreement;

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Rule 5: The 7-Day Rule

The agreement must provide that for a period of at least 7 days following the execution of such agreement, the employee may revoke the agreement, and the agreement shall not become effective or enforceable until the revocation period has expired;

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Rule 6: Mass Termination

If the employee is part of a group or class of employees being terminated as part of an exit incentive program, the employer must provide a written breakdown of the individuals covered by the program, the eligibility factors, time limits, as well as the job titles and ages of all individuals eligible or selected (and not eligible) for the program.

Additional Resources

To see all of the requirements under the federal statute, see 29 U.S.C. 626(f)(2).

Older Workers Benefit Protection Act

Age Discrimination in Employment Act (ADEA)

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