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  • Writer's pictureDavid Manes

When are ADEA Claims Not Waivable

The Age Discrimination in Employment Act (ADEA) strives to protect employees from age discrimination, placing rules upon employers and employees to ensure these protections are taken seriously. Sometimes an employer may try to coerce an employee into waving their claim to certain rights; however, the federal civil rights laws prohibit these employee rights from being waived. If you suspect that you are being forced to sign away employee rights, speak with a lawyer about your situation.

When are ADEA Claims Not Waivable

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Non-waivable rights are built on two ideas. The first is that interference with protected activities is unlawful, and the second is the fact that retaliation is also illegal. Based on these two foundations of law, expecting employees to waive certain employee rights goes against these basic tenets of employment law.

An employee can agree to sign waivers of ADEA claims when they receive something in exchange and have been given plenty of time to determine their decision. The Older Workers Benefit Protection Act (OWBPA) established a process to ensure that employees receive enough information to make an informed decision.

7 OWBPA Factors that Must Be Satisfied Before Signing an ADEA Waiver

Waiving employee rights is, at first glance, not wholly approved by the law. But, in some circumstances, an employer might see this as necessary. The OWBPA requires that the employees who choose to waive their ADEA claims are given ample time to understand and voluntarily agree to this waiver. Here are the seven factors that must be present for a waiver of ADEA claims.

1. The language of the waiver must be easily understood.

Sometimes employers may try to hide behind legal language confusion to protect their company from lawsuit. The OWBPA does not allow this to be an option. A waiver must be in simple and clear language. Complex sentences and technical jargon with misleading information and hyperbolic explanations should not be a part of the waiver.

2. Spell out specifically the ADEA rights.

The Equal Employment Opportunity Commission (EEOC) demands that an OWBPA waiver spells out the Age Discrimination in Employment Act (ADEA) word for word. This includes sharing what ADEA rights or claims are being referred to in the waiver.

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3. Inform the employee to consult a lawyer.

Before signing the waiver, the employee must be told to speak with a lawyer. In fact, the waiver should go so far as to specifically say that it advises the employee to consult a lawyer before agreeing. To not suggest that the employee seek the advice of an independent legal representative about the waiver is to fail to comply with OWBPA.

4. The waiver should provide 21 days for consideration.

When only one employee is being offered a waiver, he or she should receive 21 days to consider the offer. This time period begins at the date of the employer’s offer. If the offer changes, the 21-day time period begins anew.

Note: For a waiver that’s a part of a program for more than one employee, each individual should receive 45 days for considering the agreement.

5. The employee has 7 days to back out of the agreement after signing.

The waiver must provide the employee with seven days to reverse the agreement after signing. This period of time cannot be shortened or changed for any reason. Moreover, neither party has the ability to waive this 7-day period.

6. A signed waiver cannot include future rights and claims.

An employee cannot waive their rights for reporting a discriminatory act after signing the waiver. Any future problem that occurs after the waiver has been executed is eligible for legal action. The waiver can remove an employee’s right to sue for past issues.

7. The employee should receive all entitled salary and rights in addition to the benefits supplied by the waiver.

An employer must support the waiver with a consideration that is additional to what the employee is already owed. This can mean a lump sum payment or a payment plan as well as health insurance until a specified date. A waiver without any additional consideration is unlawful.

When a waiver fails to meet one of these seven rules, a court will deem it invalid and unenforceable. Moreover, if your employer tries to slap a Band-Aid on the faulty waiver by issuing an amending letter with all the required OWBPA information, this fails to do so. A new waiver must be drawn up and go through the same reviewing process with the employee.

When are ADEA Claims Not Waivable: Tell Me More

Waiving the rights to your ADEA claims comes with a number of complicated situations. When error or coercion are involved, a waiver can become invalid based on those facts. Meanwhile, ADEA claims are only waivable when they meet all requirements set out by OWBPA.

Invalid by Coercion

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ADEA claims are deemed not waivable when employers use fraud, excessive influence, and other means to convince an employee to sign the waiver. Also, if any error such as a material mistake, omission, or misstatement are present, the ADEA claims become not waivable.

Joe signed a waiver when he learned that his termination had to do with a reorganization of the business so he could receive severance pay. When an old coworker told Joe that he’d been replaced by a younger person, Joe filed an age discrimination lawsuit. The company scrambled for another viable excuse for their actions, but the court found the waiver invalid due to fraud.

Age Does Not Mean More Severance Pay

The ADEA does not require employer to offer a great amount of money or insurance to an employee simply based on age. It is common for employees to receive a variation of benefits based on position and tenure for their severance pay.

You Can Always Challenge an ADEA Waiver

Under OWBPA, an employee retains the right to have a court determine whether a waiver is valid or not. The employer cannot respond to your challenge of the waiver by avoiding its duties to the waiver still. It’s illegal for the severance payments or other benefits to be withheld.

Natalie’s job was eliminated and she was given a 6-month severance payment plan as well as a waiver. When she filed a lawsuit against her employer for age discrimination, she received notification that all of her severance payments had been suspended. The court found the employer to be guilty of discrimination as well as violating their own waiver by not providing the agreed upon severance plan.

Criteria for Group Layoffs

Terminating a group of employees usually places them into two different programs: exit incentive or employment termination. An employer who plans on offering waivers to employees must give enough information about the process of selection to calm any fears of discrimination. This means revealing the factors used for choosing which employees stayed so older employees don’t suspect age discrimination.

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More Criteria

  1. Waiver must include the seven OWBPA factors.

  2. Employer must issue written notice of layoff to all employees being laid off.

  3. Employees should receive 45 days to consider signing the waiver.

  4. The information or decisional unit, such as class, unit, or group, that was used to decide who would be laid off.

  5. Eligibility for termination program

  6. Time limits

  7. Job titles and ages

For ADEA claims to be waivable, a number of factors must align. Without these details in place, waivers become invalid. Waivers are meant to be mutually beneficial to both employee and employer. When you believe that your employer has taken advantage of you and violated your rights, reach out to a lawyer to determine how to best handle the situation.

Chat with an employment attorney: (412) 626-5626 or

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