If you look at the case law regarding the requirement that the waiver must be knowing and voluntary, many of the factors the courts take into account are similar to the requirements imposed by the OWBPA
," she points out.
While Hammaker seems to complicate the employer's intention of a waiver to include ADEA claims, there are several decisions to the contrary, which hold that OWBPA
requirements apply to substantive rights as opposed to procedural rights.
The sort of "damages offset" applicable in OWBPA
cases would apply with even more force in the context of a ban on confidential settlements.
158) The unspecified requirement of additional consideration is the only substantive condition on OWBPA
waivers; the other conditions are basically procedural.
The information about groups, eligibility factors, job titles, and ages in the 45-day OWBPA
waiver agreement is calculated to allow an employee (and his lawyer) to determine whether he could have at least a colorable age discrimination claim, either disparate treatment or disparate impact.
provides that if the worker is able to show that the waiver was invalid, he or she can pursue remedies under the ADEA, such as back pay, attorneys' fees, and "equitable relief," including reinstatement and promotion.
In addition, the OWBPA
limited offsets of pension benefits against severance payments, raising the cost borne by employers when involuntarily terminating older workers.
provides that the following conditions must be satisfied for a waiver to be knowing and voluntary:
In addition, employers should be careful not to violate the Employee Retirement Income Security Act (ERISA) and OWBPA
, both of which may come into play in the event of a work force reduction.
does give examples of voluntary early retirement incentive plans or window plans that are lawful:
EEOC contends that Sears' action is inconsistent with the OWBPA
addresses several topics, most notably waivers of liability of ADEA claims, early retirement incentive programs, and the "equal cost or equal benefit" principle.