During the late 1980s and early 1990s, businesses trying to survive in a sluggish economy began reducing their workforces, a practice known as downsizing. When layoffs or early retirements affected older workers disproportionately, age discrimination claims escalated.
Many companies offered attractive earlyretirement packages in return for an employee's waiver of rights to any legal claims. During the 1980s, courts generally allowed such waivers as long as the employee's acceptance was knowing and voluntary and the employee received valuable consideration in return. In Cirillo v. Arco Chemical Co., 862 F.2d 448 (1988), for example, the U.S. Court of Appeals for the Third Circuit held that because the plaintiff had knowingly and voluntarily signed a waiver of his right to sue, and in return had received a higher-than-average severance package, the waiver did not violate the ADEA. Likewise, in Lancaster v. Buerkle Buick Honda Co., 809 F.2d 539, cert. denied, 482 U.S. 928, 107 S. Ct. 3212, 96 L. Ed. 2d 699 (1987), the U.S. Court of Appeals for the Eighth Circuit found that the plaintiff, by virtue of his years of business experience, was well equipped to understand the waiver he signed. Similar reasoning prevailed in Runyan v. National Cash Register Corp., 787 F.2d 1039 (6th
Cir. 1986) (en banc), cert. denied, 479 U.S. 850, 107 S.Ct. 178, 93 L. Ed. 2d 114 (1986), where the court upheld a waiver because the employee who signed it was an experienced labor lawyer.
The ADEA specifically recognizes the validity of waivers in the OWBPA, and establishes strict guidelines for employers to follow in executing them. The waiver must use simple, understandable language that clearly delineates the terms of the agreement and leaves no question that the employee is giving up any right to pursue a lawsuit (29 U.S.C.A. § 626[f]). Several cases in 1993 and 1994 that invalidated waiver agreements illustrate how important it is for an employer to follow the guidelines to the letter. Oberg v. Allied Van Lines, Inc., 11 F. 3d 679 (7th Cir. 1993), held that a waiver agreement that did not meet the requirements of the OWBPA was void and could not be ratified even though the employee accepted and retained the severance package offered in exchange for the waiver. The same reasoning applied to invalidate the waiver agreement in Soliman v. Digital Equipment Corp., 869 F. Supp. 65 (D. Mass. 1994).
The Supreme Court has also upheld that employers must follow the letter of the law when asking employees to waive their rights to file an age discrimination complaint in return for severance pay. In Oubre v. Entergy Operations, Inc., 522 U.S. 422, 118 S.Ct. 838, 139 L.Ed.2d 849 (1998), the worker accepted a severance package and signed a release that stated she would not sue the company for any reason related to her termination. She accepted the severance payments but soon after filed an age discrimination lawsuit. The company argued that the release was valid and that she had not attempted to return her severance payments.
The Supreme Court ruled that the company had failed to meet the minimum notice requirements set out in the OWBP. Specifically, the employer had not given the worker enough time to consider her options; it had failed to give her seven days after she signed the release to change her mind; and the release made no specific reference to claims under the ADEA.
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