If an upcoming reduction in force (RIF) will affect older workers, create a paper trail to demonstrate compliance with the Older Workers Benefit Protection Act (OWBPA).
OWBPA requires employers to provide a list of employees affected by the RIF, including their job titles, ages and the factors the company used to choose who would go. Older workers need to see the list before signing any age-discrimination liability release.
If sued, you must prove employees got to see the list. If someone later claims he or she didn’t see it, you need concrete proof you followed the law. Here’s how to show you did:
- Have each employee sign and date a copy of the RIF list showing he or she received it along with the rest of the paperwork. Company witnesses should also date and sign the copy.
- Log the acknowledgment in your files and include a date stamp.
- Schedule a meeting to sign the actual agreement and release. The employee should date and sign the waiver agreement, which should include an acknowledgment that the employee received the RIF list earlier.
Recent case: Hussein Faraji worked as an engineer for Cleveland Electric Illumination Co. until he was terminated as part of a merger-related RIF. The new entity, FirstEnergy, offered older employees such as Faraji, 54, a severance package in exchange for a release for any liability under the Age Discrimination in Employment Act. Faraji accepted the offer of $30,000 and signed the waiver.
He sued for age discrimination anyway, claiming an OWBPA violation because FirstEnergy never gave him a list of affected employees and their ages. A FirstEnergy HR representative testified that all packets included the list, but Faraji couldn’t remember whether he got it. The court chose to believe the company. (Faraji v. FirstEnergy, No. 1:04-CV-1493, ND OH, 2007)
Final note: Ultimately, the court allowed Faraji to sue anyway. An examination of the RIF list showed it didn’t explain how the affected employees were selected.