by Michael Fox
What a mouthful of initials. However, if you are a regular reader of this site, you probably know what the Older Workers Benefits Protection Act is. Today the 3rd Circuit vacated an earlier decision affirming a release under the OWBPA, after the EEOC joined with the plaintiff in seeking a re-hearing. The basic challenge was that the release was invalid under the OWBPA because it included an agreement not to “file a charge, complaint, lawsuit or other claim against [Lehigh Valley].” Plaintiff and Commission argued that this violated 29 U.S.C. § 626(f)(4), which provides that any waiver will not interfere with the EEOC's right to enforce the Age Act. However, the court held that section is clearly not included in the list of requirements for a valid waiver. It upheld the waiver against that and a number of other arguments. Wastak v. Lehigh Valley Health Network, (3rd Cir. 9/2/03) [pdf].
While this language would seem to give a green light for an employer to include such language, before doing so one needs to pay close attention to footnote 6:
... We note, however, that a regulation that became effective after the incident before us clearly precludes the inclusion of provisions that prohibit resort to administrative process. See 29 C.F.R. § 1625.22(i)(2) (“No waiver agreement may include any provision prohibiting any individual from . . . [f]iling a charge or complaint, including a challenge to the validity of the waiver agreement, with [the] EEOC.”). The presence of such a prohibition in a waiver agreement that is subject to this regulation could certainly lead a court to find, under proper circumstances, that the waiver “ha[d] the effect of misleading, misinforming, or failing to inform” the plaintiff, 29 C.F.R. § 1625.22(b)(4), thus rendering the waiver not “knowing and voluntary,” and, therefore, invalid. But, again, that is not this case.
Short word of advice, review your release in light of not only the OWBPA, but also the EEOC regulations implementing the OWBPA.