[Federal Register Volume 63, Number 108 (Friday, June 5, 1998)]
[Rules and Regulations]
[Pages 30624-30631]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-14908]
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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
29 CFR Part 1625
Waiver of Rights and Claims Under the Age Discrimination in
Employment Act (ADEA)
AGENCY: Equal Employment Opportunity Commission.
ACTION: Final rule.
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SUMMARY: EEOC is publishing this final regulation on agreements waiving
rights and claims under the Age Discrimination in Employment Act, in
order to set forth procedures for complying with the Older Workers
Benefit Protection Act of 1990.
DATES: This final regulation will be effective on July 6, 1998.
FOR FURTHER INFORMATION CONTACT: Joseph N. Cleary, Assistant Legal
Counsel, or Paul E. Boymel, Senior Attorney-Advisor, Office of Legal
Counsel, 202-663-4692 (voice), 202-663-7026 (TDD).
SUPPLEMENTARY INFORMATION:
A. History
Congress amended the ADEA by enacting the Older Workers Benefit
Protection Act of 1990 (OWBPA), Pub. L. 101-433, 104 Stat. 983 (1990),
to clarify the prohibitions against discrimination on the basis of age.
In Title II of OWBPA, Congress addressed waivers of rights and claims
under the ADEA, amending section 7 of the ADEA by adding a new
subsection (f), 29 U.S.C. 626(f).
Section 7(f)(1) provides that ``an individual may not waive any
right or claim under the [ADEA] unless the waiver is knowing and
voluntary.'' Section 7(f) sets out the minimum criteria for determining
whether a waiver is knowing and voluntary.
In light of the OWBPA amendments, EEOC published an Advance Notice
of Proposed Rulemaking (ANPRM) in the Federal Register, 57 FR 10626
(March 27, 1992), seeking information from the public on various issues
under both titles of OWBPA. In response to the ANPRM, EEOC received
approximately 40 comments, many of which presented detailed analyses of
Title II issues, requesting EEOC to provide formal guidance on waivers
of rights and claims under the ADEA. Since the publication of the
ANPRM, EEOC also has received numerous written and telephone inquiries
requesting information on how to comply with Title II.
On August 31, 1995, EEOC announced in the Federal Register, 60
[[Page 30625]]
FR 45388 (August 31, 1995), its intent to use negotiated rulemaking to
develop a proposed Title II rule.
B. Purpose of Negotiated Rulemaking
Negotiated rulemaking, under procedures set out in the Negotiated
Rulemaking Act, 5 U.S.C. 561 et seq., Pub. L. 101-648, is a relatively
new tool used by agencies in connection with the development of
regulations. In using negotiated rulemaking, EEOC has reached out to
employers, employees, and their representatives to take into account
the concerns of all interested communities in the development and
drafting of the proposed rule. This procedure contrasts with the more
traditional ``notice and comment'' rulemaking where an agency receives
public input only after the proposed rule is published for comment. The
advantages of negotiated rulemaking include:
1. The negotiated rulemaking process allows public input from the
start, permitting the stakeholders--individuals, organizations, and
businesses actually affected by the rule--to explain their concerns and
help shape the rule;
2. The agency gains the benefit of the expertise of the
stakeholders, enabling it to draft a rule that reflects the realities
of the workplace, not just the agency's views;
3. The negotiated rulemaking process requires consensus of the
committee members. Since stakeholder representatives from all sides of
the issues to be addressed are involved, the stakeholders will be more
willing to accept the regulation without legal challenge. While no
stakeholder will be happy with every provision of a rule, each will
know that the rule represents a reasonable solution to shared problems.
C. Negotiated Rulemaking on Title II of OWBPA
The August 31, 1995, Federal Register notice set out nine issues
that EEOC suggested might be discussed during the negotiated rulemaking
process. EEOC left open the possibility that the Negotiated Rulemaking
Committee would add other issues to the proposed rule and/or choose not
to address one or more of the enumerated issues.
The notice also invited members of the public who were interested
in serving on the Committee to inform EEOC of their interest and
qualifications. EEOC received over 70 requests to participate on the
Committee, representing a wide diversity of interests and backgrounds.
EEOC chose 18 Committee participants from members of the public
representing labor, management, and employee interests, along with 2
EEOC representatives to serve on the Committee. The members of the
Committee were:
Elizabeth M. Barry, Esq., Harvard University, Cambridge, MA
William H. Brown, Esq., Schnader, Harrison, Segal & Lewis,
Philadelphia, PA
Joseph N. Cleary, Esq., Equal Employment Opportunity Commission,
Washington, DC
John C. Dempsey, Esq., AFSCME, AFL-CIO, Washington, DC
Raymond C. Fay, Esq., Bell Boyd & Lloyd, Washington, DC
Burton D. Fretz, Esq., National Senior Citizens Law Center, Washington,
DC
Peter Kilgore, Esq., National Restaurant Association, Washington, DC
Lloyd C. Loomis, Esq., Atlantic Richfield Co., Los Angeles, CA
Benton J. Mathis, Esq., Drew, Eckl & Farnham, Atlanta, GA
Thomas R. Meites, Esq., Meites, Frackman, Mulder & Burger, Chicago, IL
Niall A. Paul, Esq., Spilman, Thomas & Battle, Charleston, WV
Markus L. Penzel, Esq., Garrison, Phelan, Levin-Epstein & Penzel, and
National Employment Lawyers Assn., New Haven, CT
L. Steven Platt, Esq., Arnold and Kadjan, and National Employment
Lawyers Assn., Chicago, IL
Pamela S. Poff, Esq., Paine Webber Inc., Weehawken, NJ
Michele C. Pollak, Esq., American Association of Retired Persons,
Washington, DC
Jaime Ramon, Esq., Jackson Walker, Dallas, TX
Patrick W. Shea, Esq., Paul Hastings, Janofsky & Walker, Society for
Human Resource Management, Stamford, CT
Paul H. Tobias, Esq., Tobias Kraus & Torchia, Cincinnati, OH
Ellen J. Vargyas, Esq., Equal Employment Opportunity Commission,
Washington, DC
Robert Williams, Esq., McGuiness & Williams, Equal Employment Advisory
Council, Washington, DC
The Negotiated Rulemaking Committee began work on December 6, 1995.
Committee meetings were held on December 6-7, 1995, January 23-24,
1996, March 6-7, 1996, April 16-17, 1996, June 18-19, 1996, and July
23-24, 1996. The Committee discussed in detail the issues set out in
the August 31, 1995 Federal Register notice, as well as other issues
that the Committee considered needed to be resolved. The Committee
functioned by consensus which it defined as the absence of objection by
any Committee member.
The Committee unanimously forwarded a recommended proposed rule to
EEOC for its consideration. As a result of the recommendations received
from the Committee, and its deliberations regarding such
recommendations, EEOC published for public comment the Committee's
negotiated rule in a Notice of Proposed Rulemaking (NPRM) dated March
10, 1997, 62 FR 10787.
Comments on the NPRM
Fifteen comments were received from the public with regard to the
NPRM. Following the end of the 60 day public comment period, members of
the Negotiated Rulemaking Committee were given a period of 30 days to
provide EEOC with their written views relating to the proposed rule and
the comments received. Two Committee members submitted written
comments. Several federal agencies provided oral comments during
interagency coordination under Executive Order 12067.
EEOC has analyzed carefully the comments received. For the reasons
set out herein, EEOC has determined to make only the two changes listed
in sections (a)(4) and (b)(1), below. In taking this position, EEOC is
particularly mindful of two factors. First, in a negotiated rulemaking
involving the active participation of representatives of both employers
and employees, it was clear from the outset that compromise would be an
integral element of the formulation of the regulation.
Secondly, the fact that only fifteen comments were submitted by
members of the public reinforces EEOC's view that the compromise
reached and incorporated in this regulation sets forth appropriate
standards and strikes a reasonable balance between the various
interests. None of the comments was sufficiently persuasive, as a
substantive matter, to warrant altering the negotiated rulemaking
consensus reached by the Committee.
In analyzing the regulation and the comments, EEOC emphasizes that
no inference should be drawn on any issue, including issues discussed
in the analysis of the comments received, by reason of the regulation's
silence with respect to such issue.
EEOC responds to the principal points raised in the comments on a
section-by-section basis, as follows:
Section (a): Introduction
1. Several comments asked that section (a)(3) be amended to provide
[[Page 30626]]
guidance on the definition of ``a material mistake, omission, or
misstatement.''
EEOC adopts the Committee's view that questions of whether
particular changes, mistakes, omissions, or misstatements are material
should be analyzed under the existing law regarding ``materiality.''
Additionally, EEOC does not accept the suggestion by one commentor
that a material error will invalidate a waiver agreement only if an
employee proves that the error was intentional and that he/she
reasonably relied upon the misinformation. Reliance is not an element
of proof either in the statute or the regulation, and errors need not
be intentional to be material.
2. Another commentor asked for clarification on whether the
provisions of a waiver agreement are severable (that is, whether the
invalidity of one provision of a waiver agreement would invalidate the
entire agreement). Section 7(f) of the ADEA sets out minimum standards
for the validity of a waiver agreement. An agreement that fails to meet
all of the requirements of that section will not be valid.
3. In its verbal comments during the Executive Order 12067
coordination process, one federal agency recommended that the
regulation should state explicitly that it applies to employees of the
United States Government. EEOC concurs, and has added new section
(a)(4) to the regulation.
Section (b): Wording of Waiver Agreements
1. In section (b)(5) of the NPRM, the word ``plan'' was inserted
erroneously in the quotation. The word is removed in the final rule.
2. One federal agency has pointed out correctly that, among the
factors to be considered in determining, under section 7(f)(1)(A) of
the ADEA and section (b)(3) of the regulation, whether a waiver
agreement is ``written in a manner calculated to be understood by such
individual, or by the average individual eligible to participate'' is a
person's ability to understand the language in which the waiver is
written. Because this is part of the necessary interpretation of the
existing regulatory language, there was no need to amend the
regulation.
Section (c): Waiver of Future Rights
Two employee representatives expressed concern that this section
permits the waiver of future rights. The comments misunderstand the
rule. The section only states that the waiver agreement properly may
contain agreements to perform certain actions in the future (e.g., the
employee may agree to retire at the end of a school year). Under the
statute and the regulation, the waiver agreement cannot provide for the
waiver of rights regarding new acts of discrimination that occur after
the date of signing.
Section (d): Consideration
One commentor stated that the regulation should require the payment
of ``substantial'' consideration in exchange for a waiver. Section
7(f)(1)(D) of the ADEA requires ``consideration in addition to anything
of value to which the individual already is entitled,'' not
``substantial'' consideration. The regulation does clarify, however,
that an employer may not eliminate, in contravention of a law or
contract, a benefit or other thing of value and then claim that the
subsequent offer of such benefit or thing of value constitutes the
required consideration.
Section (e): Time Periods
1. One commentor suggested that employees and employers should be
permitted to shorten the seven-day waiting period specified in section
7(f)(1)(G) of the ADEA. The legislative history of OWBPA makes it clear
that the seven-day waiting period is mandatory, giving an employee the
chance to reconsider a possibly hasty waiver of rights. Accordingly,
EEOC does not adopt the comment.
2. Section (e)(4) of the regulation states that ``[m]aterial
changes to the final offer restart the running of the 21 or 45 day
period.'' Several commentors asked for a specific definition of the
term ``material.'' As stated in #(a)(1), above, EEOC has determined
that the well-established law regarding materiality will govern such
determinations.
Section (f): Informational Requirements
1. Nine of the comments addressed the scope of the information that
must be given pursuant to section 7(f)(1)(H) of the ADEA to employees
``* * * if a waiver is requested in connection with an exit incentive
or other termination program offered to a group or class of employees *
* * `` Six of these comments requested more details covering a wide
range of specific fact patterns, relying in large part on the use of
hypothetical questions.
The regulation was not designed to address every possible situation
that might arise. Indeed, it is neither feasible nor desirable to
provide such detailed guidance in a regulatory context. However, EEOC
believes that the regulation does provide a thorough and practical
framework for determining the scope of the informational requirements.
2. Four comments asked that the term ``program'' in section
7(f)(1)(H) of the ADEA be defined in greater depth. In general, these
comments did not address the basic definition of a program, but sought
clarification on how to determine how many programs exist, especially
in the context of a reduction in force conducted over a period of
months or in more than one facility of a large employer.
The regulation already addresses these questions. Section
(f)(3)(ii) of the regulation discusses the definition of a program in
the context of a reduction in force conducted over a period of time,
and section (f)(4)(vi) addresses the question of multiple facilities.
EEOC believes that the regulation provides adequate guidance as
drafted.
3. Section 7(f)(1)(H)(ii) of the ADEA requires the employer to
provide ``the job titles and ages of all individuals eligible or
selected for the program, and the ages of all individuals in the same
job classification or organizational unit who are not eligible or
selected for the program.'' One commentor suggested that the regulation
specifically require job titles, in addition to ages, for persons not
eligible or selected.
Since the statutory language varies slightly, EEOC has declined to
adopt this comment. However, the information about individuals who are
not eligible or selected for the program should be provided in a format
that compares them to individuals in the same job classification or
organizational unit who were eligible or selected.
Section (g): Waivers Settling Charges and Lawsuits
No comments were received.
Section (h): Burden of Proof
Several employer representatives suggested that the burden of
proving compliance or noncompliance with the OWPBA provisions should
rest upon the employee. However, section 7(f)(3) of the ADEA states
clearly that the party asserting the validity of a waiver has the
burden of proving that a waiver was knowing and voluntary pursuant to
section 7(f)(1) or (2) of the ADEA. Because the regulatory language is
based directly upon the statute, EEOC has determined not to change the
proposed regulation.
Section (i): EEOC's Enforcement Powers
Seven comments urged EEOC to permit employees to waive the right to
file a charge of discrimination with EEOC or another civil rights
agency. The proposed regulation prohibited such
[[Page 30627]]
waivers. EEOC does not adopt the suggestion to change the proposed
regulation.
Section 7(f)(4) of the ADEA states that ``[n]o waiver agreement may
affect the Commission's rights and responsibilities to enforce [the
ADEA]. No waiver may be used to justify interfering with the protected
right of an employee to file a charge or participate in an
investigation or proceeding conducted by the Commission.'' EEOC
believes that permitting such waivers would be inconsistent with this
statutory provision. See also, EEOC's Enforcement Guidance on Non-
Waivable Employee Rights under Equal Employment Opportunity Commission
Enforced Statutes, No. 915.002 (April 10, 1997). Therefore, subsection
(i) of the NPRM is adopted as published in the NPRM.
Section (j): Effective Date
No comments were received.
Section (k): Statutory Authority
No comments were received.
Additional Comments
1. Five of the commentors urged that the regulation address the
question of whether employees can be required to tender back any
consideration received under a waiver agreement before being permitted
to challenge the waiver agreement in court. Three comments urged that a
tender back requirement be included in the regulation, while two
comments stated that the regulation should clarify that such a
requirement would violate the ADEA.
The Supreme Court decided this issue in Oubre v. Entergy
Operations, Inc., 118 S.Ct. 838 (1998), holding that a release that
does not comply with the OWBPA requirements cannot bar an employee's
ADEA claims. The Court held that retention of the consideration given
in exchange for a waiver does not amount to a ratification of the
waiver agreement, and an employee seeking to challenge the validity of
an ADEA waiver is not required to tender back the consideration to the
employer before bringing legal action. EEOC is considering the
appropriate form of guidance to issue in response to the Oubre
decision, but has decided that, in order to avoid substantial delay,
this regulation should not address the issue of tender back of
consideration.
However, with regard to the administrative process, section (i)(3)
of the regulation provides that a waiver agreement cannot impose ``any
condition precedent, any penalty, or other limitation adversely
affecting'' an individual's right to file a charge or complaint with
EEOC or assist EEOC in an investigation. Thus, a requirement in a
waiver agreement that an individual tender back the consideration
before filing a charge or complaint of discrimination with EEOC or
assisting EEOC in an investigation will be void.
2. Two commentors representing employee interests proposed a series
of additions to the regulation. For example, the commentors recommended
that the regulation: discuss in detail the various theories of
discrimination under the ADEA; adopt a particular statistical framework
for evaluating the data provided to employees; and set forth
recordkeeping requirements.
EEOC believes that these issues fall beyond the scope of this
rulemaking and should not be included in the final regulation.
Executive Order 12866, Regulatory Planning and Review:
Under section 3(f)(4) of Executive Order 12866, EEOC has determined
that this regulation would be a ``significant regulatory action.''
Therefore, EEOC has coordinated the NPRM and this final regulation with
the Office of Management and Budget. However, under section 3(f)(1) of
Executive Order 12866, EEOC has determined that the regulation will not
have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State or local or tribal governments or
communities. The rule will not create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency.
Therefore, EEOC has not needed to prepare a detailed cost-benefit
assessment of the regulation.
Paperwork Reduction Act
The provisions of Title II of OWBPA do require employers to provide
certain information to employees (but not to EEOC) in writing.
Accordingly, EEOC, as part of its continuing effort to reduce
paperwork and respondent burden, has, as required by the Paperwork
Reduction Act for all collections of information, solicited comments
concerning the proposed rule with regard to the paperwork requirements
contained in Title II of OWBPA. The provisions of the proposed and
final rule dealing with informational requirements have been submitted
to and approved by the Office of Management and Budget under section
3507 of the Paperwork Reduction Act, OMB Approval No. 3046-0042.
The public reporting and recordkeeping burden for this collection
of information is estimated to be 41,139 hours in order for employers
to collect the information and to determine: (1) what information must
be given to employees; (2) which employees must be given the
information; (3) how the information should be organized.
The estimated burden of collecting and distributing the information
was calculated as follows:
Collection Title: Informational requirements under Title II of the
Older Workers Benefit Protection Act of 1990 (OWBPA), 29 CFR Part 1625.
Form Number: None.
Frequency of Report: None required.
Type of Respondent: Business, state or local governments, not for
profit institutions.
Description of the Affected Public: Any employer with 20 or more
employees that seeks waiver agreements in connection with exit
incentive or other employment termination programs (hereinafter,
``Programs'').
Responses: 13,713.
Reporting Hours: 41,139.
Number of Forms: None.
Abstract: This requirement does not involve record keeping. It
consists of providing adequate information in waiver agreements offered
to a group or class of persons in connection with a Program, to satisfy
the requirements of the OWBPA.
Burden Statement: There is no reporting requirement nor additional
record keeping associated with this rule. The only paperwork burden
involved is the inclusion of the relevant data in waiver agreements.
The rule applies only to those employers who have 20 or more employees
and who offer waivers to a group or class of employees in connection
with a Program.
There are 542,000 employers who have at least 20 employees.
Programs come into play when, as a result of business activity,
employers are forced to cut their work force. Based on statistics from
EEOC's private employer survey, it is estimated that in any one year
4.6% of employers are involved in activities, such as mergers or
downsizing, which occasion the use of Programs. It is further
estimated, based on figures from a General Accounting Office study, and
the Bureau of Labor Statistics, that at most 55% of those who use
Programs require waivers and thus are affected by this rule.
Applying the above factors to the total number of employers:
[(542,000 x .046 x .55) = 13,713] yields 13,713 employers that are
affected by this requirement. The larger employers are assumed to have
computerized record keeping, and
[[Page 30628]]
thus can produce the requisite notification with a minimum of effort,
while smaller employers have far less information to process.
Therefore, it is estimated that, on the average, a notification can
be produced in approximately 3 hours. This would then produce a maximum
of (13,713 x 3) = 41,139 hours annually.
EEOC asked the public to comment on the information provisions
contained in the proposed regulation to:
Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of EEOC,
including whether the information shall have practical utility;
Evaluate the accuracy of EEOC's estimate of the burden of
the proposed collection of information;
Enhance the quality, utility, and clarity of the
information to be collected; and
Minimize the burden of collection of information on those
who are to respond, including through the use of automated collection
techniques or other forms of information technology.
The only comment received in response to the NPRM with regard to
the Paperwork Reduction Act, from the American Association of Retired
Persons, agreed with EEOC's view of the requirements imposed by that
Act. Accordingly, the Paperwork Reduction Act information herein is
unchanged from the proposed regulation.
EEOC certifies under 5 U.S.C. 605(b), enacted by the Regulatory
Flexibility Act (Pub. L. 96-354), that this regulation will not result
in a significant economic impact on a substantial number of small
entities. For this reason, a regulatory flexibility analysis is not
required. A copy of the proposed rule was furnished to the Small
Business Administration.
In addition, in accordance with Executive Order 12067, EEOC has
solicited the views of affected Federal agencies with regard to the
NPRM and the final regulation.
The final regulation appears below.
List of Subjects in 29 CFR Part 1625
Advertising, Age, Employee benefit plans, Equal employment
opportunity, Retirement.
Signed at Washington, DC this 29th day of May, 1998.
Paul M. Igasaki,
Chairman.
Chapter XIV of title 29 of the Code of Federal Regulations is
amended as follows:
PART 1625--AGE DISCRIMINATION IN EMPLOYMENT ACT
1. The authority citation for part 1625 continues to read as
follows:
Authority: 81 Stat. 602; 29 U.S.C. 621, 5 U.S.C. 301,
Secretary's Order No. 10-68; Secretary's Order No. 11-68; sec. 12,
29 U.S.C. 631, Pub. L. 99-592, 100 Stat. 3342; sec. 2, Reorg. Plan
No. 1 of 1978, 43 FR 19807.
2. In part 1625, Sec. 1625.22 is added to subpart B--Substantive
Regulations to read as follows:
Sec. 1625.22 Waivers of rights and claims under the ADEA.
(a) Introduction. (1) Congress amended the ADEA in 1990 to clarify
the prohibitions against discrimination on the basis of age. In Title
II of OWBPA, Congress addressed waivers of rights and claims under the
ADEA, amending section 7 of the ADEA by adding a new subsection (f).
(2) Section 7(f)(1) of the ADEA expressly provides that waivers may
be valid and enforceable under the ADEA only if the waiver is ``knowing
and voluntary''. Sections 7(f)(1) and 7(f)(2) of the ADEA set out the
minimum requirements for determining whether a waiver is knowing and
voluntary.
(3) Other facts and circumstances may bear on the question of
whether the waiver is knowing and voluntary, as, for example, if there
is a material mistake, omission, or misstatement in the information
furnished by the employer to an employee in connection with the waiver.
(4) The rules in this section apply to all waivers of ADEA rights
and claims, regardless of whether the employee is employed in the
private or public sector, including employment by the United States
Government.
(b) Wording of Waiver Agreements.
(1) Section 7(f)(1)(A) of the ADEA provides, as part of the minimum
requirements for a knowing and voluntary waiver, that:
The waiver is part of an agreement between the individual and
the employer that is written in a manner calculated to be understood
by such individual, or by the average individual eligible to
participate.
(2) The entire waiver agreement must be in writing.
(3) Waiver agreements must be drafted in plain language geared to
the level of understanding of the individual party to the agreement or
individuals eligible to participate. Employers should take into account
such factors as the level of comprehension and education of typical
participants. Consideration of these factors usually will require the
limitation or elimination of technical jargon and of long, complex
sentences.
(4) The waiver agreement must not have the effect of misleading,
misinforming, or failing to inform participants and affected
individuals. Any advantages or disadvantages described shall be
presented without either exaggerating the benefits or minimizing the
limitations.
(5) Section 7(f)(1)(H) of the ADEA, relating to exit incentive or
other employment termination programs offered to a group or class of
employees, also contains a requirement that information be conveyed
``in writing in a manner calculated to be understood by the average
participant.'' The same standards applicable to the similar language in
section 7(f)(1)(A) of the ADEA apply here as well.
(6) Section 7(f)(1)(B) of the ADEA provides, as part of the minimum
requirements for a knowing and voluntary waiver, that ``the waiver
specifically refers to rights or claims under this Act.'' Pursuant to
this subsection, the waiver agreement must refer to the Age
Discrimination in Employment Act (ADEA) by name in connection with the
waiver.
(7) Section 7(f)(1)(E) of the ADEA requires that an individual must
be ``advised in writing to consult with an attorney prior to executing
the agreement.''
(c) Waiver of future rights. (1) Section 7(f)(1)(C) of the ADEA
provides that:
A waiver may not be considered knowing and voluntary unless at a
minimum . . . the individual does not waive rights or claims that
may arise after the date the waiver is executed.
(2) The waiver of rights or claims that arise following the
execution of a waiver is prohibited. However, section 7(f)(1)(C) of the
ADEA does not bar, in a waiver that otherwise is consistent with
statutory requirements, the enforcement of agreements to perform future
employment-related actions such as the employee's agreement to retire
or otherwise terminate employment at a future date.
(d) Consideration. (1) Section 7(f)(1)(D) of the ADEA states that:
A waiver may not be considered knowing and voluntary unless at a
minimum * * * the individual waives rights or claims only in
exchange for consideration in addition to anything of value to which
the individual already is entitled.
(2) ``Consideration in addition'' means anything of value in
addition to that to which the individual is already entitled in the
absence of a waiver.
(3) If a benefit or other thing of value was eliminated in
contravention of law
[[Page 30629]]
or contract, express or implied, the subsequent offer of such benefit
or thing of value in connection with a waiver will not constitute
``consideration'' for purposes of section 7(f)(1) of the ADEA. Whether
such elimination as to one employee or group of employees is in
contravention of law or contract as to other employees, or to that
individual employee at some later time, may vary depending on the facts
and circumstances of each case.
(4) An employer is not required to give a person age 40 or older a
greater amount of consideration than is given to a person under the age
of 40, solely because of that person's membership in the protected
class under the ADEA.
(e) Time periods. (1) Section 7(f)(1)(F) of the ADEA states that:
A waiver may not be considered knowing and voluntary unless at a
minimum * * *
(i) The individual is given a period of at least 21 days within
which to consider the agreement; or
(ii) If a waiver is requested in connection with an exit
incentive or other employment termination program offered to a group
or class of employees, the individual is given a period of at least
45 days within which to consider the agreement.
(2) Section 7(f)(1)(G) of the ADEA states:
A waiver may not be considered knowing and voluntary unless at a
minimum . . . the agreement provides that for a period of at least 7
days following the execution of such agreement, the individual may
revoke the agreement, and the agreement shall not become effective
or enforceable until the revocation period has expired.
(3) The term ``exit incentive or other employment termination
program'' includes both voluntary and involuntary programs.
(4) The 21 or 45 day period runs from the date of the employer's
final offer. Material changes to the final offer restart the running of
the 21 or 45 day period; changes made to the final offer that are not
material do not restart the running of the 21 or 45 day period. The
parties may agree that changes, whether material or immaterial, do not
restart the running of the 21 or 45 day period.
(5) The 7 day revocation period cannot be shortened by the parties,
by agreement or otherwise.
(6) An employee may sign a release prior to the end of the 21 or 45
day time period, thereby commencing the mandatory 7 day revocation
period. This is permissible as long as the employee's decision to
accept such shortening of time is knowing and voluntary and is not
induced by the employer through fraud, misrepresentation, a threat to
withdraw or alter the offer prior to the expiration of the 21 or 45 day
time period, or by providing different terms to employees who sign the
release prior to the expiration of such time period. However, if an
employee signs a release before the expiration of the 21 or 45 day time
period, the employer may expedite the processing of the consideration
provided in exchange for the waiver.
(f) Informational requirements. (1) Introduction. (i) Section
7(f)(1)(H) of the ADEA provides that:
A waiver may not be considered knowing and voluntary unless at a
minimum . . . if a waiver is requested in connection with an exit
incentive or other employment termination program offered to a group
or class of employees, the employer (at the commencement of the
period specified in subparagraph (F)) [which provides time periods
for employees to consider the waiver] informs the individual in
writing in a manner calculated to be understood by the average
individual eligible to participate, as to--
(i) Any class, unit, or group of individuals covered by such
program, any eligibility factors for such program, and any time
limits applicable to such program; and
(ii) The job titles and ages of all individuals eligible or
selected for the program, and the ages of all individuals in the
same job classification or organizational unit who are not eligible
or selected for the program.
(ii) Section 7(f)(1)(H) of the ADEA addresses two principal issues:
to whom information must be provided, and what information must be
disclosed to such individuals.
(iii)(A) Section 7(f)(1)(H) of the ADEA references two types of
``programs'' under which employers seeking waivers must make written
disclosures: ``exit incentive programs'' and ``other employment
termination programs.'' Usually an ``exit incentive program'' is a
voluntary program offered to a group or class of employees where such
employees are offered consideration in addition to anything of value to
which the individuals are already entitled (hereinafter in this
section, ``additional consideration'') in exchange for their decision
to resign voluntarily and sign a waiver. Usually ``other employment
termination program'' refers to a group or class of employees who were
involuntarily terminated and who are offered additional consideration
in return for their decision to sign a waiver.
(B) The question of the existence of a ``program'' will be decided
based upon the facts and circumstances of each case. A ``program''
exists when an employer offers additional consideration for the signing
of a waiver pursuant to an exit incentive or other employment
termination (e.g., a reduction in force) to two or more employees.
Typically, an involuntary termination program is a standardized formula
or package of benefits that is available to two or more employees,
while an exit incentive program typically is a standardized formula or
package of benefits designed to induce employees to sever their
employment voluntarily. In both cases, the terms of the programs
generally are not subject to negotiation between the parties.
(C) Regardless of the type of program, the scope of the terms
``class,'' ``unit,'' ``group,'' ``job classification,'' and
``organizational unit'' is determined by examining the ``decisional
unit'' at issue. (See paragraph (f)(3) of this section, ``The
Decisional Unit.'')
(D) A ``program'' for purposes of the ADEA need not constitute an
``employee benefit plan'' for purposes of the Employee Retirement
Income Security Act of 1974 (ERISA). An employer may or may not have an
ERISA severance plan in connection with its OWBPA program.
(iv) The purpose of the informational requirements is to provide an
employee with enough information regarding the program to allow the
employee to make an informed choice whether or not to sign a waiver
agreement.
(2) To whom must the information be given. The required information
must be given to each person in the decisional unit who is asked to
sign a waiver agreement.
(3) The decisional unit. (i)(A) The terms ``class,'' ``unit,'' or
``group'' in section 7(f)(1)(H)(i) of the ADEA and ``job classification
or organizational unit'' in section 7(f)(1)(H)(ii) of the ADEA refer to
examples of categories or groupings of employees affected by a program
within an employer's particular organizational structure. The terms are
not meant to be an exclusive list of characterizations of an employer's
organization.
(B) When identifying the scope of the ``class, unit, or group,''
and ``job classification or organizational unit,'' an employer should
consider its organizational structure and decision-making process. A
``decisional unit'' is that portion of the employer's organizational
structure from which the employer chose the persons who would be
offered consideration for the signing of a waiver and those who would
not be offered consideration for the signing of a waiver. The term
``decisional unit'' has been developed to reflect the process by which
an employer chose certain employees for a program and ruled out others
from that program.
(ii)(A) The variety of terms used in section 7(f)(1)(H) of the ADEA
demonstrates that employers often use differing terminology to describe
their
[[Page 30630]]
organizational structures. When identifying the population of the
decisional unit, the employer acts on a case-by-case basis, and thus
the determination of the appropriate class, unit, or group, and job
classification or organizational unit for purposes of section
7(f)(1)(H) of the ADEA also must be made on a case-by-case basis.
(B) The examples in paragraph (f)(3)(iii), of this section
demonstrate that in appropriate cases some subgroup of a facility's
work force may be the decisional unit. In other situations, it may be
appropriate for the decisional unit to comprise several facilities.
However, as the decisional unit is typically no broader than the
facility, in general the disclosure need be no broader than the
facility. ``Facility'' as it is used throughout this section generally
refers to place or location. However, in some circumstances terms such
as ``school,'' ``plant,'' or ``complex'' may be more appropriate.
(C) Often, when utilizing a program an employer is attempting to
reduce its workforce at a particular facility in an effort to eliminate
what it deems to be excessive overhead, expenses, or costs from its
organization at that facility. If the employer's goal is the reduction
of its workforce at a particular facility and that employer undertakes
a decision-making process by which certain employees of the facility
are selected for a program, and others are not selected for a program,
then that facility generally will be the decisional unit for purposes
of section 7(f)(1)(H) of the ADEA.
(D) However, if an employer seeks to terminate employees by
exclusively considering a particular portion or subgroup of its
operations at a specific facility, then that subgroup or portion of the
workforce at that facility will be considered the decisional unit.
(E) Likewise, if the employer analyzes its operations at several
facilities, specifically considers and compares ages, seniority
rosters, or similar factors at differing facilities, and determines to
focus its workforce reduction at a particular facility, then by the
nature of that employer's decision-making process the decisional unit
would include all considered facilities and not just the facility
selected for the reductions.
(iii) The following examples are not all-inclusive and are meant
only to assist employers and employees in determining the appropriate
decisional unit. Involuntary reductions in force typically are
structured along one or more of the following lines:
(A) Facility-wide: Ten percent of the employees in the Springfield
facility will be terminated within the next ten days;
(B) Division-wide: Fifteen of the employees in the Computer
Division will be terminated in December;
(C) Department-wide: One-half of the workers in the Keyboard
Department of the Computer Division will be terminated in December;
(D) Reporting: Ten percent of the employees who report to the Vice
President for Sales, wherever the employees are located, will be
terminated immediately;
(E) Job Category: Ten percent of all accountants, wherever the
employees are located, will be terminated next week.
(iv) In the examples in paragraph (f)(3)(iii) of this section, the
decisional units are, respectively:
(A) The Springfield facility;
(B) The Computer Division;
(C) The Keyboard Department;
(D) All employees reporting to the Vice President for Sales; and
(E) All accountants.
(v) While the particular circumstances of each termination program
will determine the decisional unit, the following examples also may
assist in determining when the decisional unit is other than the entire
facility:
(A) A number of small facilities with interrelated functions and
employees in a specific geographic area may comprise a single
decisional unit;
(B) If a company utilizes personnel for a common function at more
than one facility, the decisional unit for that function (i.e.,
accounting) may be broader than the one facility;
(C) A large facility with several distinct functions may comprise a
number of decisional units; for example, if a single facility has
distinct internal functions with no employee overlap (i.e.,
manufacturing, accounting, human resources), and the program is
confined to a distinct function, a smaller decisional unit may be
appropriate.
(vi)(A) For purposes of this section, higher level review of
termination decisions generally will not change the size of the
decisional unit unless the reviewing process alters its scope. For
example, review by the Human Resources Department to monitor compliance
with discrimination laws does not affect the decisional unit.
Similarly, when a regional manager in charge of more than one facility
reviews the termination decisions regarding one of those facilities,
the review does not alter the decisional unit, which remains the one
facility under consideration.
(B) However, if the regional manager in the course of review
determines that persons in other facilities should also be considered
for termination, the decisional unit becomes the population of all
facilities considered. Further, if, for example, the regional manager
and his three immediate subordinates jointly review the termination
decisions, taking into account more than one facility, the decisional
unit becomes the populations of all facilities considered.
(vii) This regulatory section is limited to the requirements of
section 7(f)(1)(H) and is not intended to affect the scope of discovery
or of substantive proceedings in the processing of charges of violation
of the ADEA or in litigation involving such charges.
(4) Presentation of information. (i) The information provided must
be in writing and must be written in a manner calculated to be
understood by the average individual eligible to participate.
(ii) Information regarding ages should be broken down according to
the age of each person eligible or selected for the program and each
person not eligible or selected for the program. The use of age bands
broader than one year (such as ``age 20-30'') does not satisfy this
requirement.
(iii) In a termination of persons in several established grade
levels and/or other established subcategories within a job category or
job title, the information shall be broken down by grade level or other
subcategory.
(iv) If an employer in its disclosure combines information
concerning both voluntary and involuntary terminations, the employer
shall present the information in a manner that distinguishes between
voluntary and involuntary terminations.
(v) If the terminees are selected from a subset of a decisional
unit, the employer must still disclose information for the entire
population of the decisional unit. For example, if the employer decides
that a 10% RIF in the Accounting Department will come from the
accountants whose performance is in the bottom one-third of the
Division, the employer still must disclose information for all
employees in the Accounting Department, even those who are the highest
rated.
(vi) An involuntary termination program in a decisional unit may
take place in successive increments over a period of time. Special
rules apply to this situation. Specifically, information supplied with
regard to the involuntary termination program should be cumulative, so
that later terminees are provided ages and job titles or job
categories, as appropriate, for all persons in the decisional unit at
the beginning of the program and all persons terminated to date. There
is no
[[Page 30631]]
duty to supplement the information given to earlier terminees so long
as the disclosure, at the time it is given, conforms to the
requirements of this section.
(vii) The following example demonstrates one way in which the
required information could be presented to the employees. (This example
is not presented as a prototype notification agreement that
automatically will comply with the ADEA. Each information disclosure
must be structured based upon the individual case, taking into account
the corporate structure, the population of the decisional unit, and the
requirements of section 7(f)(1)(H) of the ADEA): Example: Y Corporation
lost a major construction contract and determined that it must
terminate 10% of the employees in the Construction Division. Y decided
to offer all terminees $20,000 in severance pay in exchange for a
waiver of all rights. The waiver provides the section 7(f)(1)(H) of the
ADEA information as follows:
(A) The decisional unit is the Construction Division.
(B) All persons in the Construction Division are eligible for the
program. All persons who are being terminated in our November RIF are
selected for the program.
(C) All persons who are being offered consideration under a waiver
agreement must sign the agreement and return it to the Personnel Office
within 45 days after receiving the waiver. Once the signed waiver is
returned to the Personnel Office, the employee has 7 days to revoke the
waiver agreement.
(D) The following is a listing of the ages and job titles of
persons in the Construction Division who were and were not selected for
termination and the offer of consideration for signing a waiver:
----------------------------------------------------------------------------------------------------------------
No. No. not
Job Title Age Selected selected
----------------------------------------------------------------------------------------------------------------
(1) Mechanical Engineers, I................ 25....................................... 21 48
26....................................... 11 73
63....................................... 4 18
64....................................... 3 11
(2) Mechanical Engineers, II............... 28....................................... 3 10
29....................................... 11 17
Etc., for all ages
(3) Structural Engineers, I................ 21....................................... 5 8
Etc., for all ages
(4) Structural Engineers, II............... 23....................................... 2 4
Etc., for all ages
(5) Purchasing Agents...................... 26....................................... 10 11
Etc., for all ages
----------------------------------------------------------------------------------------------------------------
(g) Waivers settling charges and lawsuits. (1) Section 7(f)(2) of
the ADEA provides that:
A waiver in settlement of a charge filed with the Equal
Employment Opportunity Commission, or an action filed in court by
the individual or the individual's representative, alleging age
discrimination of a kind prohibited under section 4 or 15 may not be
considered knowing and voluntary unless at a minimum--
(A) Subparagraphs (A) through (E) of paragraph (1) have been
met; and
(B) The individual is given a reasonable period of time within
which to consider the settlement agreement.
(2) The language in section 7(f)(2) of the ADEA, ``discrimination
of a kind prohibited under section 4 or 15'' refers to allegations of
age discrimination of the type prohibited by the ADEA.
(3) The standards set out in paragraph (f) of this section for
complying with the provisions of section 7(f)(1) (A)-(E) of the ADEA
also will apply for purposes of complying with the provisions of
section 7(f)(2)(A) of the ADEA.
(4) The term ``reasonable time within which to consider the
settlement agreement'' means reasonable under all the circumstances,
including whether the individual is represented by counsel or has the
assistance of counsel.
(5) However, while the time periods under section 7(f)(1) of the
ADEA do not apply to subsection 7(f)(2) of the ADEA, a waiver agreement
under this subsection that provides an employee the time periods
specified in section 7(f)(1) of the ADEA will be considered
``reasonable'' for purposes of section 7(f)(2)(B) of the ADEA.
(6) A waiver agreement in compliance with this section that is in
settlement of an EEOC charge does not require the participation or
supervision of EEOC.
(h) Burden of proof. In any dispute that may arise over whether any
of the requirements, conditions, and circumstances set forth in section
7(f) of the ADEA, subparagraph (A), (B), (C), (D), (E), (F), (G), or
(H) of paragraph (1), or subparagraph (A) or (B) of paragraph (2), have
been met, the party asserting the validity of a waiver shall have the
burden of proving in a court of competent jurisdiction that a waiver
was knowing and voluntary pursuant to paragraph (1) or (2) of section
7(f) of the ADEA.
(i) EEOC's enforcement powers. (1) Section 7(f)(4) of the ADEA
states:
No waiver agreement may affect the Commission's rights and
responsibilities to enforce [the ADEA]. No waiver may be used to
justify interfering with the protected right of an employee to file
a charge or participate in an investigation or proceeding conducted
by the Commission.
(2) No waiver agreement may include any provision prohibiting any
individual from:
(i) Filing a charge or complaint, including a challenge to the
validity of the waiver agreement, with EEOC, or
(ii) Participating in any investigation or proceeding conducted by
EEOC.
(3) No waiver agreement may include any provision imposing any
condition precedent, any penalty, or any other limitation adversely
affecting any individual's right to:
(i) File a charge or complaint, including a challenge to the
validity of the waiver agreement, with EEOC, or
(ii) Participate in any investigation or proceeding conducted by
EEOC.
(j) Effective date of this section. (1) This section is effective
July 6, 1998.
(2) This section applies to waivers offered by employers on or
after the effective date specified in paragraph (j)(1) of this section.
(3) No inference is to be drawn from this section regarding the
validity of waivers offered prior to the effective date.
(k) Statutory authority. The regulations in this section are
legislative regulations issued pursuant to section 9 of the ADEA and
Title II of OWBPA.
[FR Doc. 98-14908 Filed 6-4-98; 8:45 am]
BILLING CODE 6570-01-P
