What changes if I am 40 or older?

The checklist

Under 29 U.S.C. § 626(f)(1), a release of an age claim must:

• be written in a way you can understand;
• refer specifically to rights under the age discrimination law;
• not waive claims that arise after you sign (§ 626(f)(1)(C));
• give you something beyond what you were already entitled to;
• advise you in writing to consult a lawyer;
• give you 21 days to consider it, or 45 in a group layoff, and 7 days to revoke.

In a group layoff, the employer must also tell you in writing which group or unit of people the program covers, the eligibility factors, and any time limits, and give you the job titles and ages of everyone eligible or selected, and the ages of everyone in the same job classification or unit who was not (§ 626(f)(1)(H)). A disclosure that defines the group only by reference to the people selected does not say who was covered. The employer has the burden of proving the waiver was knowing and voluntary (§ 626(f)(3)).

What courts have said

If the release fails the checklist, it does not bar the age claim, and you do not have to return the money first. Oubre holds the release unenforceable as to the age claim “irrespective of the validity of the contract as to other claims.” The regulations go further: no agreement may require you to tender back the consideration, or pay the employer’s fees, as the price of challenging it (29 C.F.R. § 1625.23(b)).

What about my other claims?

For every other federal claim (race, sex, disability, national origin, retaliation) there is no statutory checklist. Courts ask whether the waiver was knowing and voluntary on the totality of the circumstances: your education and experience, how long you had the agreement, your role in setting its terms, its clarity, whether you consulted a lawyer, whether the money exceeded what you were already owed, and whether the employer encouraged you to get advice (Livingston).

What should I gather?

• The agreement, and the date and time you received it.
• Any group-layoff disclosure listing job titles and ages.
• Anything showing what you were already owed (a severance plan, an employment agreement, earned pay), so you can see whether the agreement gives you anything more.
• Anything in writing about why you were selected, and who else was let go.