Can employees waive their rights under the anti-discrimination laws?

Rights or claims under the anti-discrimination laws may be waived as long as any waiver is knowing and voluntary. Waivers may be appropriate in several situations that may or may not involve group terminations:

• severance packages,

• early retirement packages,

• settlement of charges or lawsuits.

Keep in mind, however, that employee waivers do not affect the EEOC's enforcement responsibilities. Even though an individual has signed a waiver of the right to file a lawsuit, the individual can still file a charge with the EEOC or participate in an EEOC investigation.

Although it is not necessary for a court or the EEOC to oversee a release of statutory rights, courts will enforce them only if they were knowing and voluntary. Moreover, the Age Discrimination in Employment Act sets out minimum statutory requirements that must be met in order for a waiver to be valid. Under the ADEA, a waiver must:

• be written in understandable language

• specifically refer to rights or claims under the ADEA

• relate only to past claims–prospective claims cannot be waived

• be in exchange for something of value beyond that to which the individual is already entitled

• advise the individual to consult with an attorney before signing

• provide the individual with adequate time to consider the release (generally 21 days but the time varies depending upon the circumstances of the waiver)

• include a seven-day revocation period (unless in settlement of a charge or lawsuit).

Courts may also look at other factors in determining whether the execution of a waiver was knowing and voluntary. Fraud, duress, or coercion in the execution of a waiver may show that a waiver was not knowing and voluntary. A material mistake, omission, or misstatement may also have an impact on whether a waiver is knowing and voluntary.

Do the same rules apply when a waiver is part of a group termination program? Stricter requirements apply to waivers requested in connection with exit incentives or other employment termination programs offered to a group or class of employees. These types of programs commonly involve severance pay and early retirement incentives.

When a group termination program (whether voluntary or involuntary) is involved, waivers must meet all of the requirements outlined above. However, employees must be given 45 days in with which to consider a waiver, instead of the 21 days required for individual releases. Employees may choose to sign a release prior to the expiration of the 45 days, thereby starting the mandatory 7-day revocation period.

Additionally, employees involved in such a program must be told clearly in writing about the details of the termination program, participation and eligibility. The purpose of this is to give employees enough information regarding the program to allow them to make informed choices about whether or not to sign a release.

Information given to employees involved in a group termination program should answer the following questions:

• Who would be covered by the termination program?

• What are the program's eligibility requirements?

• What time limits are applicable to the program?

• What are the job titles and ages of all employees eligible or selected for the program?

• What are the ages of all persons in the same job classification or organizational unit who are not eligible or selected for the program?