Sample waiver under ADEA - OWBPA- Chapter 9

Sample Waiver and General Release: Group Layoffs of Employees Age 40 and Over

The following example illustrates one way in which the required OWBPA information could be presented to employees as part of a waiver agreement and is not intended to suggest that employers must follow this format. Rather, each waiver agreement should be individualized based on an employer’s particular organizational structure and the average comprehension and education of the employees in the decisional unit subject to termination. For another example of how the required information might be presented, see 29 C.F.R. § 1625.22(f)(vii).
Although this sample addresses only OWBPA issues, most severance agreements also ask employees to waive all claims against the employer, including claims arising under any federal, state, and local laws. See paragraph 6 below.

Dear [Employee]:
This letter will constitute the agreement between you and [your employer](“the Company”) on the terms of your separation from the Company (hereinafter the “Agreement”). The Agreement will be effective on the date specified in paragraph 7, below.

1. Your employment will terminate on _______X_____ date.
or
You have agreed to resign on _______X_______ date. Your last day of work will be _______X_______ date.

2. In consideration of your acceptance of this Agreement, the Company will pay you an extra ______ [week’s][month’s] salary at your current rate of $_______ per [week][month], less customary payroll deductions, to be paid within five (5) business days after the effective date of this Agreement as defined in paragraph 7 below. This severance pay will be in addition to your earned salary and accrued vacation pay or leave to which you are entitled.
***
[Paragraphs 3, 4, and 5 may address benefits, unemployment compensation, references, return of property, confidentiality, etc.]

6. Except as to claims that cannot be released under applicable law, you waive and release any and all claims you have or might have against the Company. . . .These claims include, but are not limited to claims for discrimination arising under federal, state, and local statutory or common law, including Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Genetic Information and Discrimination Act, and [state law].
***
7. The following information is required by OWBPA: You acknowledge that on __________________, you were given 45 days to consider and accept the terms of this Agreement and that you were advised to consult with an attorney about the Agreement before signing it. To accept the Agreement, please date and sign this letter and return it to me. Once you do so, you will still have seven (7) additional days from the date you sign to revoke your acceptance (“revocation period”). If you decide to revoke this Agreement after signing and returning it, you must give me a written statement of revocation or send it to me by fax, electronic mail, or registered mail. If you do not revoke during the seven-day revocation period, this Agreement will take effect on the eighth (8th) day after the date you the sign the Agreement.
   The class, unit, or group of individuals covered by the program includes all employees in the _____ [plant, location, area, etc.] whose employment is being terminated in the reduction in force during the following period :_______________). All employees in ___[plant, location, area, etc.] whose employment is being terminated are eligible for the program.
   The following is a listing of the ages and job titles of employees who were and were not selected for layoff [or termination] and offered consideration for signing the waiver. Except for those employees selected for layoff [or termination], no other employee is eligible or offered consideration in exchange for signing the waiver:
   

   Job Title	Age	# Selected	# Not Selected
   (1) Bookkeepers	25	2	4
   	28	1	7
   	45	6	2
   (2) Accountants	63	1	0
   	24	3	5
   (3) Retail Sales Clerks	29	1	7
   	40	2	1
   (4) Wholesale Clerks	33	0	3
   	51	2	1

Sincerely,
__________________________________
On Behalf [the Company]
By signing this letter, I acknowledge that I have had the opportunity to consult with an attorney of my choice; that I have carefully reviewed and considered this Agreement; that I understand the terms of the Agreement; and that I voluntarily agree to them.

________________ Date:

______________________________________________ [Employee]