Severance Waivers and Adea

Employment Law The author of this report has been asked to look at a test case situation and then answer a few questions about legal waivers that are often signed as a condition of receiving early retirement, severance or some other sort of payment arrangement. Specifically, this case is about a person who received a low performance score. That person was given the option to remain on or take a severance buyout, with the employee electing the latter.

She then sued the company on the basis of age discrimination under ADEA. It is generally stated and agreed upon in the case study that the employer cannot use a waiver to avoid an ADEA or similar claim. However, there are three questions asked beyond that and they shall be answered in this brief report. While waivers are a tool to avoid lawsuits and claims, there are certain things that they cannot wash away.

Analysis The first question in the case study asks whether the fact that the employee consulted with an attorney is a good indication that the acceptance of the waiver was "knowing and voluntary." To be really blunt, the agreement would be binding no matter what if it was signed unless there were some overarching circumstances such as the language of the waiver not being native to the signee or something along those lines.

However, perhaps the bigger factor that one should consider is what precisely is being waived, or is thought to be waived. For example, if an employee stated after the signing of a waiver that she was shorted on her last paycheck, that is really the whole point of a severance waiver so that would almost certainly fall flat (Cotton, 2006). Further, the fact that she consulted with an attorney before signing would further affirm that she had her eyes wide open.

However, that is all irrelevant when it comes to provisions and laws that cannot be trumped by such a waiver. Of course, an ADEA claim is one of those situations. In short, the employee should know what they are signing. However, documented consultation with an attorney would work against the employee if there was any sort of doubt to the validity of the sign-off (Nolo, 2015). An employer should ensure that a waiver is valid by working with a general counsel or attorney that is familiar with such agreements.

Familiarity would include knowing what is allowed, what is not allowed and why either or both of the prior or true. Using the example above, any attorney or counsel that helps draw up a legal and binding waiver should know that ADEA claims cannot be waived by a piece of paper as the law will always usurp any such clause or agreement. Employers must follow these guidelines in large part due to what is mentioned in the case study.

If a waiver could be used to trump ADEA, ADA or other legal claims against employers, they would be used in a nefarious and weaponized way to do just that. Instead, the government has asserted that employers have no such power, at least when it comes to certain things. That is the way it should be and it should not be changed. However, the government is sometimes wrong. For example, the EEOC has come out and said that screening out applicants based on criminal history can and should be illegal.

Such a thought pattern, right or wrong, is a rash of neglectful hire lawsuits waiting to happen and the EEOC should be very careful on what they mandate when it.