Employers should also ensure that OWBPA regulations prohibit employers from imposing a penalty on workers if they challenge the validity of an unlocking agreement. The ineligible penalties contained in the unlocking contracts may include provisions that require employees to recover the consideration received when a worker files an action challenging the validity of the release contract or a provision requiring employees to pay legal fees and/or damages to employers following the filing of an ADEA action. 29 C.F.R. No 1625.23 (b). (However, note that if a staff member successfully challenges the validity of the agreement and prevails in the merits of an ADEA action, a court of law must revalue any consideration paid to the employee as part of the release agreement against all damages awarded in the course of the subsequent action. Therefore, we generally recommend that employers use an appropriate release and release agreement when offering severance pay. As a general rule, an employer is not required to offer severance pay unless there is an employment agreement or severance policy that requires severance pay. But even if there is such an agreement or policy of severance pay, the agreement or policy should also require the implementation of a compensation agreement to obtain severance pay and year-end pay. Unfortunately, the release of future claims is not applicable. Therefore, if the employee signs the release a week before her last day and is then sexually assaulted (for example) during the last week of work, then her release agreement would not prevent her from filing a complaint. If there is something you do not understand, you should visit a work and work lawyer after an outside lawyer. Ideally, you will find someone who specializes in non-disappearing agreements or severance agreements and is local, as laws may vary depending on where you live.
A starting point: the Workplace Fairness Attorney Directory of Lawyers Representing Workers. Rights under the Employment Age Discrimination Act (« ADEA ») may be waived in a release agreement, but the release agreement must meet all requirements of the Seniors Protection Act (« OWBPA »). Unfortunately, OWBPA violations remain some of the most common errors made by employers in the development of severance agreements. When many employers are faced with such a requirement, they may choose to exclude from the contract any non-disparaging language rather than apply such a clause to both parties.