When conducting a reduction in force (RIF), it’s vital to handle severance offers carefully. Make sure you don’t needlessly give discharged employees the idea that they can file an age-discrimination lawsuit when you offer severance pay in exchange for signing a waiver promising not to sue.
The Older Workers Benefit Protection Act (OWBPA) requires you to provide laid-off employees a list of the ages and job titles of employees scheduled for termination. You must provide enough information to allow them to judge whether age discrimination may have entered into the RIF decisions.
But there’s no need to release companywide figures, especially if those figures show many older workers are about to lose their jobs.
You’ll satisfy your legal obligation by releasing data only about the pool from which you selected employees for the RIF.
Recent case: When McDonald’s restructured operations nationwide, it merged 38 regions into 21 and slated 500 jobs for layoff. Carolyn Burlison and four other older employees were among 66 out of 208 who lost their jobs when three regions merged into one.
McDonald’s gave Burlison and the others a list of the ages and job titles of every employee in the three merged regions, identifying terminated employees as well as those who kept their jobs. It offered them severance pay in exchange for a promise not to sue. They all accepted the offer but sued anyway, alleging that the fast-food giant should have provided information on employees in all of its regions.
The 11th Circuit disagreed, saying McDonald’s was obligated to provide information only about employees in the new region. (Burlison, et al., v. McDonald’s Corporation, No. 05-13991, 11th Cir., 2006)
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