The lesson? At a time of uncertainty, when many employers are looking at voluntary severance pay as a way to reduce costs, employers should think critically before offering such a package to workers, especially when they offer only voluntary severance pay to certain age groups. Even if it appears that the offer of voluntary severance pay is a safer choice, unlike an FIR, a court may nevertheless find that a package of severance pay is a sufficient disadvantage to discriminate. In addition, employers who opt for voluntary severance pay should carefully review information about the compensation process. As always, it is best to consult a lawyer to discuss the details of a planned voluntary severance package. In general, the release of ADEA rights into a compensation agreement must be voluntary and knowingly, but if the rights to age discrimination are to be released, 7 factors must be met: the existence of a “program” depends on the facts and circumstances of each case; But the general rule is that there is a “program” when an employer offers additional consideration – or an incentive to leave – in exchange for signing a waiver declaration to more than one employee.  On the other hand, if a large employer has laid off five employees in different units (for example. B poor performance) over several days or months, it is unlikely that a “program” exists. In both exit incentive programs and other redundancy programmes, the employer determines the terms of the severance agreement, which are generally non-negotiable.  Example 8: A staff member who was informed that his dismissal was the result of a “reorganization” signed a waiver for severance pay.
After hiring a younger person to do his old job, he filed an age discrimination complaint. The company then changed its position, stating that the real reason for the employee`s dismissal was his poor performance. The employee submitted that his waiver for fraud was not valid and that if he had known that he was being dismissed for allegedly poor benefits, he had suspicions of age discrimination and would not have signed the waiver. The Tribunal found that the fraud was sufficient grounds to find the waiver invalid.  Following the applicant`s decision, the employer announced that 350 employees had opted for voluntary severance pay and that the company would make involuntary additional staff reductions. The employee stated that these defects allowed him to pursue his claims, and he also moved to amend his complaint to file a claim for violation of the OWBPA. UPS argued that the New York Human Rights Act, as a state law, did not require UPS to comply with the state OWBPA and that, therefore, state law should be rejected on the basis of the release provisions of the separation agreement. Whenever a client asks me to prepare a redundancy contract for an outgoing employee, I first ask if the employee is 40 years of age or older. This is important because severance agreements for workers aged 40 and over must comply with the Older Workers Protection Act (OWBPA), which sets minimum conditions for the release of rights under the Age Discrimination in Employment Act (ADEA). And as I have written elsewhere, if your employees have limited knowledge of English, be sure to provide them with an agreement translated into the language they speak, because a court will probably invalidate your English-language agreement! Example 12: a company eliminated almost all directly non-commercial positions and offered six months of severance pay to dismissed employees in exchange for signing a waiver declaration.