What is an ADEA Waiver?
It is a document that is signed by you waiving your rights or claims under the ADEA, but it must be done knowingly and voluntarily. An employer is within their rights to ask for you to sign one, but they can not force you. Before signing a waiver consult an attorney to make sure you understand the terms of the waiver and your rights.
There are many requirements for an ADEA waiver to be considered valid by law:
- must be in writing and be understandable. This means that if you only had a conversation with your boss about what will happen when you leave the company, without anything being put in writing, you have not waived your right to pursue an ADEA claim.
- must specifically refer to ADEA rights or claims. Some companies use what is called a “general release,” where you agree to waive any and all claims against the company without the types of claims being specified. While this may be valid in other situations, it will not be legally sufficient to waive your ADEA claims.
- may not waive rights or claims that may arise in the future. This means you can agree to waive your right to sue for something that already happened, but you cannot waive your right to sue for something that hasn't happened yet. For example, you can waive your right to file a claim over your termination, but if a few years later, your employer reduces your retirement benefits, you still may be able to file a claim over that.
- must be in exchange for valuable consideration. This is a legal term that means that you must receive something in exchange for signing that you would not have received otherwise, like a larger severance package or additional benefits. If you were entitled to certain benefits anyway, and did not receive anything additional in return for signing a waiver, it is not valid under the ADEA.
- must advise you in writing to consult an attorney before signing the waiver. While you do not have to actually consult with an attorney, and may choose not to, you must have been advised in writing to consult an attorney.
- must provide you with at least 21 days to consider the agreement and at least 7 days to revoke the agreement after signing it. If you are presented with a waiver that you must sign immediately without the time to consider it properly and/or consult with an attorney, you cannot lose your rights under the ADEA. If you have signed something that you were only given a few days (or few hours) to consider, and you suspect that you are a victim of age discrimination, you should consult with an attorney to see whether your waiver is valid or not.
In addition, if an employer requests an ADEA waiver in connection with an exit incentive program or other employment termination program, the minimum requirements for a valid waiver are more extensive. For example, if the offer is being made to a group or class of employees, your employer must inform you in writing how the class of employees is defined; the job titles and ages of all the individuals to whom the offer is being made; and the ages of all the employees in the same job classification or unit of the company to whom the offer is not being made. This allows you to have relevant information, that you might not know otherwise, about how the offer affects older workers compared to other workers in the company. You should consult with an attorney to determine whether the waiver you have signed has complied with the more extensive requirements.
The U.S. Supreme Court has also ruled that you may challenge the validity of the waiver without first giving back the money you received in exchange for the waiver. Prior to this decision, based on the law generally applicable to other kinds of contracts, if you had accepted the money, you were considered to have “ratified” the waiver, or to have consented to the company's violation of the law in exchange for the money you received. This prevented older workers, who may have already spent all or part of the money before they learned that the waiver was illegal, from being able to challenge illegal waivers under the OWBPA.
If you or someone you know needs help with an ADEA waiver, call the Atlanta Employment Attorneys of Barrett and Farahany for a free consultation today (404) 238-7299!