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Review your severance packages; EEOC tightening scrutiny

by on
in Discrimination and Harassment,Human Resources

When employers offer severance packages, they often ask employees to waive their rights to sue the employer. That's a smart strategy, but small discrepancies in the agreement's wording can make the difference between a successful severance package and a call from the EEOC.

And the EEOC has been calling a lot lately, so it's wise to make sure your severance policies are in good working order.

6 parts of a legal waiver

Severance packages must conform to the Age Discrimination in Employment Act (ADEA) and its companion law, the Older Workers Benefit Protection Act (OWBPA). Together, the two laws dictate how you can legally ask employees to waive their right to sue.

When asking employees to waive their rights to age-bias lawsuits, the waiver must:

  1. Be in writing and be understandable.
  2. Specifically refer to the ADEA rights or claims.
  3. Not waive rights or claims that may arise in the future.
  4. Be provided in exchange for other consideration.
  5. Advise the person in writing to consult an attorney before signing the waiver.
  6. Provide the person at least 21 days to consider the agreement and at least seven days to revoke the agreement after signing it.

Beyond those provisions, employers may not retaliate against an employee for filing a charge with the EEOC or any other governmental agency.

Don't put chill on future claims

Recently, dairy food giant Land O'Lakes set the EEOC churning when the company proffered a severance waiver containing language that the employee has "neither filed nor intends to file a discrimination charge."

The EEOC felt this agreement violated the OWBPA because it had a chilling effect on employees who may wish to report legitimate discrimination in the future. The OWBPA prohibits employers from making employees agree not to sue over future actions.

The EEOC attempted to settle the dispute with Land O'Lakes after the company laid off a woman when she refused to sign the waiver. The EEOC is attempting to get an injunction preventing the company from using the agreement or anything similar.

Ban on monetary award?

Lockheed Martin flew onto the EEOC's radar when one of its employees sought to alter a severance agreement after she'd collected her severance money.

She felt her layoff was discriminatory and wished to file an EEOC charge. Lockheed's agreement said the woman could not sue for monetary gain, only for injunctive relief.

A federal court sided with the woman because Lockheed had insisted she drop her EEOC lawsuit before it would modify the agreement. The court decided that Lockheed was not going to allow the woman to sue under any circumstances. Therefore, the agreement violated the law.

However, the restriction on monetary gain may still be in play. The court did not rule the agreement was illegal as written, only as implemented. The EEOC is watching those agreements closely. Employers who do not execute the agreements in good faith will most likely end up in court.  

Online resource: You can find guidance on the ADEA, OWBPA and waivers at the EEOC Web site: www.eeoc.gov.

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