Minimize liability when releasing 'older workers,' others

The provisions under the Older Work-ers Benefit Protection Act, created in 1990, offer several safety nets for em-ployers from lawsuits by "older workers" and other protected classes.

The OWBPA is an amendment to the Age Discrimination in Employment Act of 1967.

The ADEA prohibits employment discrimination against individuals age 40 and older. The OWBPA changed the rules for laborer discharges through the establishment of extremely strict criteria that allow a staff member to relinquish pending, disputed claims and his right not to be discriminated against due to his age.

Courts interpret the requirements of the law rigidly, and the business maintains the burden of proving compliance.

Legal counsel will prepare a release for the affected employee to sign. The document must be understandable by the associate and contain verbiage stating that the worker does realize what he is signing.

The form must mention that he should consult an attorney before signing and precisely refer to the rights or claims protected under the ADEA prior to the date the release is executed.

The team member is allowed to release his rights or claims only in exchange for something of value that he is not already entitled to, such as a large sum of money and outplacement services. Accordingly, paying the laborer for accrued vacation time he is entitled to per company policy does not meet the requirements of an item of value.

An associate must be granted adequate time to consider his decision prior to signing the form, although he is permitted to sign at any time during the mandatory period. At least 21 days is required for an individual without a pending claim. Forty-five days is mandated for staff members affected by group downsizings.

An employee with a current Equal Employment Opportunity Commission charge or lawsuit is to be furnished a "reasonable period of time."

Provide a worker who has no pending claims at least seven days to change his mind after signing the document. Such workers are not permitted to waive this time period. Consequently, do not render the money and outplacement services until the seven days pass.

During a group downsizing, furnish two additional items in writing.

First, document the "eligibility factors," or characteristics that qualify individuals for group programs, such as job eliminations, transfers requiring relocation or reductions to base pay. Failure to be truthful might rule the release form null and void. Second, list the job titles and ages of all selected people, and the ages of all associates in the same job classification or organizational unit not chosen for the downsizing.

For maximum protection, expand the separation agreement to a full and general release of liability, while continuing to adhere to the strict regulations of the OWBPA. Include language allowing staff to waive rights or claims to such areas as negligence, wrongful discharge, breach of contract, intentional or negligent infliction of emotional distress, and discrimination due to race, color, national origin, sex, pregnancy or disability. Be sure to cite the specific laws applying to each additional sphere of the waiver.

Lynne Haggerman is president/ owner of Haggerman & Associates, a retained search, outplacement, in-house management training, and human resources consulting firm.