While the guidelines should be seen as a resource for employers offering severance arrangements to their laid-off employees, it is also important to note that the EEOC takes questionable positions in its publication. At first glance, the idea of severance pay may seem like a friendly move, but it may not be as real as you think. Separation agreements not only give you money or benefits, but also take things away from you. The existence of a “program” depends on the facts and circumstances of the case; However, the general rule is that a “program” exists when an employer offers additional consideration – or an incentive to resign – in exchange for signing a waiver for more than one employee. [30] If, on the other hand, a large employer has five employees in different units for just cause (p.B. poor performance) over several days or months, it is unlikely that a “program” exists. For exit incentive programs and other termination programs, the employer determines the terms of the termination agreement, which are generally non-negotiable. [31] Withdrawal period: The 7-day withdrawal period means that in any case, the employee has the right to revoke his signature 7 days after the signing of the agreement. On day 8, it is a binding agreement. The revocation period cannot be terminated; Even if the employee signs the agreement with blood and swears that he will not revoke the agreement, this employee still has the option to withdraw for 7 days.

“Workers over the age of 40 are protected by the Older Workers Benefit Protection Act (“OWBPA”). To ensure that employees over the age of 40 are not under undue pressure to sign certain agreements, the OWBPA requires that these agreements include deadlines of 21 and 7 days,” reports Granovsky & Sundaresh, lawyers. Employers should pay attention to the need to give employees time to consider signing a severance agreement, a deadline that varies depending on the age of the employees. This specific legal requirement must be met for an exemption from claims under the Employment Age Discrimination Act (ADEA), as amended by the Older Workers Benefit Protection Act (OWBPA), to be enforceable. Employees have 21 days to review the agreement (the “cooling-off period”) and then 7 days to withdraw it (the “withdrawal period”). Before signing the agreement, think about these additional questions and advice: The reason it has become the norm is that the rules dictated by the OWBPA use common sense and make the agreement more legally binding. Observation Period: The 21 days can only be terminated by the EMPLOYEE. That is, the employee has 21 days to review an agreement.

If he decides to sign it on day 2, that`s fine. If he wants to wait 21 days to sign, this is also allowed. On day 22, the agreement is technically null and void (of course, the employer can always choose whether it is on the table). If a pension entitlement does not meet any of these seven requirements, it is invalid and unenforceable. [21] In addition, an employer cannot attempt to “remedy” a defective waiver by sending a subsequent letter with the information required by the OWBPA omitted from the original agreement. [22] If you have a termination agreement, it probably includes a paragraph that says something like this: The employee (and the employer) can waive all known claims. However, in California, the agreement must be clear and inform the party that it will disclose the unknown claims so that a party can release the unknown claims. Ideally, the agreement should state that the employee waives all rights under California Civil Code Section 1542 and explicitly cite Section 1542 of the agreement, which provides the following: (3) This document uses the term “severance agreement” to describe any termination agreement between an employer and an employee, whether voluntary or involuntary, which requires the employee: waive the right to take legal action for discrimination. Example 2: This agreement aims to comply with the Older Workers Benefit Protection Act. You acknowledge and agree that you expressly waive all rights and rights under the Employment Age Discrimination Act.

Third, the document contains recommendations for employees who do not fall within the normal jurisdiction of the EEOC. The EEOC publication contains an appendix with an “employee checklist” for “What to do if your employer offers you a severance agreement.” In general, this checklist sets out the requirements for the laws administered by the EEOC as described in the main document. However, the checklist also includes a general recommendation that the employee should ensure that her severance agreement does not release “non-dischargeable rights,” including “unemployment benefits, workers` compensation benefits, claims under the Fair Labour Standards Act, health insurance benefits under the Consolidated Omnibus Budget Reconciliation Act (COBRA), or claims related to vested benefits under a pension plan; that is subject to the Employee Retirement Income Security Act (PSSA).” These laws and state laws do not fall within the normal jurisdiction of the EEOC. After you`ve created your exit agreement and let your legal team think about it, you`re ready to expand the offering to your employee. Your severance agreement should include details about how long the person must reject or sign the offer. This is called the “observation period.” We always recommend telling the person to let someone review the agreement to make sure it works for them. This level of transparency is important for your corporate brand and shows that you`re not trying to force a signature (which is highly illegal). Since all these substantive details are out of the way, it`s important that you understand how to make the contract legally binding. This is where a solid understanding of the “review” phase and the “revocation” phase comes into play.

Most employees who sign waivers in termination agreements never attempt to challenge them. However, some laid-off employees may feel that they have no choice but to sign the waiver even if they suspect discrimination, or they may learn something after signing the waiver that makes them believe they have been discriminated against or unfairly fired during their employment. In addition, employers must consider a number of decision points when drafting termination agreements, even if their “forms” do not contain problematic language. For example, for a waiver to be effective, different requirements may apply depending on the following: (8) See e.B. Pilon v. University of Minnesota, 710 F.2d 466 (8th Cir. 1983) (where the employee was represented by counsel, the wording of the release was clear and there were no allegations of fraud or coercion, release was upheld). .