Thirty-three of the employees who were terminated in 2012 sued the Company in the U.S. District Court for the District of Minnesota. Specifically, the employees sought a declaratory judgment that the releases were not “knowing and voluntary,” as required by 29 U.S.C. § 626(f)(1). The employees also asserted collective and individual claims for alleged ADEA violations.

Thirty-three of the employees who were terminated in 2012 sued the Company in the U.S. District Court for the District of Minnesota. Specifically, the employees sought a declaratory judgment that the releases were not “knowing and voluntary,” as required by 29 U.S.C. § 626(f)(1). The employees also asserted collective and individual claims for alleged ADEA violations.

The Court noted that the OWBPA “provides that a waiver is not valid unless the individual executing the release is ‘advised in writing to consult with an attorney prior to executing the agreement.’” Foster, 2014 U.S. Dist. LEXIS 67637 at *18 (quoting 29 U.S.C. § 626(f)(1)(E) (emphasis added in Court’s opinion; emphasis is not in statute).In holding that the language of the separation agreement at hand did not meet that requirement, the Court noted as follows:The language does not advise Plaintiff Fisk to consult with an attorney prior to signing the Agreement, or even that he ‘should’ or ‘ought to’ consult with an attorney before signing the Agreement.

That certain formalities remained-namely, the drafting of a final, formal document-does not undermine plaintiff's' acceptance of employer's offer. OWBPA twenty-one day provision does not apply to the settlement of a court case. 29 U.S.C. § 626(f)(2).Barlow v. C.R. England, Inc., 703 F.3d 497, 116 FEP 1596 (10th Cir. 2012). Panel: BRISCOE, Gorsuch, Matheson.

The Employer’s Second Question Well, if a settlement agreement must always include an ADEA waiver, shouldn’t it also include the 21-day consideration and 7-day revocation periods mandated by the Older Workers Benefit Protection Act (OWBPA)?The Answer Good question, but the answer is “not necessarily.” The OWBPA is a rider to the ADEA, 29 U.S.C. §626. It states, essentially, that when a current or former employee is asked to waive his or her right to proceed with an age claim under the ADEA, he or she must be given 21 days to seek the advice of counsel (45 days in a group layoff) and consider what effect the waiver will have on his or her legal rights (the “consideration” period) before signing the agreement.

Co-authored by Alex S. Drummond and Brandon L. SpurlockSince the U.S. Supreme Court’s ruling last year in Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 130 S. Ct. 1758 (2010), the use of arbitration agreements to resolve employment disputes has been hotly debated, both in federal courts and elsewhere. A federal district court in Virginia – in Bennett et al. v. Dillard’s, Inc., Civ. A. No. 3:10-CV-39-JAG (E.D. Va. Mar. 10, 2011) [link to ruling] (“Bennett”) – recently ruled that the Older Workers Benefit Protection Act, 29 U.S.C. § 626(f)(1) (the “OWBPA”), does not preclude an employer from compelling claims of age discrimination into an arbitral forum. In so holding, the Court in Bennett also rejected the notion that a pre-employment arbitration agreement prepared by an employer constitutes a contract of adhesion.

The only way for Good Samaritan's written release to be effective as a general release was if Good Samaritan included the ADEA's revocation language. See 29 U.S.C. § 626(f). Contrary to Good Samaritan's argument (Good Sam.

In so doing, the key question for the jury was whether the waivers met the OWBPA’s “knowing and voluntary” requirement. (29 U.S.C. § 626) The jury found that 8 of the 10 releases flunked the “knowing and voluntary” standard, rendering those waivers unenforceable as to the agents’ age claims and permitting those claims to move forward. At issue in this opinion was whether the district court should overturn the jury’s verdict finding that the eight waivers were not knowing and voluntary.The “Totality of Circumstances” Test The Romero court announced that the statutory requirements enumerated in the OWBPA and necessary for a valid waiver of claims (29 U.S.C. § 626) may not, by themselves, be enough to establish a plaintiff’s knowledge and the voluntariness of a waiver.

No waiver may be used to justify interfering with the protected right of an employee to file a charge or participate in an investigation or proceeding conducted by the Commission.” 29 U.S.C. § 626(f)(4). Thus, the OWBPA and associated regulations prohibit any provision in a release of claims which would prevent an employee from filing a charge with the EEOC or from participating in an investigation by the EEOC.

Modeled after the Fair Labor Standards Act of 1938, the remedy provisions of the ADEA allow awards for “only those pecuniary benefits connected to the job relation,” including unpaid wages or overtime compensation. Kolb v. Goldring, Inc., 694 F.2d 869, 872 (1st Cir. 1982) (internal quotation marks omitted); see also 29 U.S.C. § 626(b); McKennon, 513 U.S. at 357. Aside from monetary relief, federal courts may also grant “such legal or equitable relief as may be appropriate to effectuate the purposes of the Act,” including reinstatement or promotion, if warranted.