In a recent Employment Law Commentary, Vol. 10, No. 2 (April 1998) we discussed Oubre v. Entergy Operations, ____ U.S. ____, 118 S.Ct. 838 (1998), in which the U. S. Supreme Court held that a release of federal age discrimination claims is ineffective if the release does not comply with the specific requirements of the Older Workers Benefit Protection Act of 1990 ("OWBPA"), Pub. L. No. 101-433, 104 Stat. 983 (1990), even where the former employee keeps the money paid for the release. We also outlined in that Commentary some of the requirements for an effective release. Subsequent to the Oubre decision, the Equal Employment Opportunity Commission ("EEOC") published final regulations which address these requirements in greater detail. The regulations became effective July 6, 1998. 63 Fed. Reg. 30624 (June 6, 1998). In this Commentary, we discuss these new regulations.
For any release of claims under the federal Age Discrimination in Employment Act, Pub. L. No. 90-202, 81 Stat. 602 (1967) ("ADEA") to be effective, OWBPA requires that the waiver be "knowing and voluntary". 29 U.S.C. §6216(f)(1). How this requirement is met depends on the context in which the waiver is obtained. For waivers that are not part of a termination program (referred to below as "individual waivers"), OWBPA imposes one set of requirements. For waivers obtained in connection with "an exit incentive or other termination program," OWBPA imposes not only more stringent requirements for the release, but also elaborate disclosure requirements regarding the termination program itself. Determining when a termination is part of a "program" and, if it is, what kind of information to disclose are two of the key issues addressed by the new regulations. In what follows, we discuss the new regulations first as they pertain to individual waivers and then as they pertain to "termination programs."
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