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Age Discrimination Claim Valid Despite Waiver, Court Says

Most employers realize that age is not a legal - or valid - reason to terminate an employee. That doesn't stop some companies from trying to circumvent the federal Age Discrimination in Employment Act (ADEA) by asking terminated employees to sign waivers that promise never to sue for age discrimination.

Lawsuit form on a desk

That's what happened to Robert Fisk, an underground miner for Colorado's Mountain Coal Co. Laying off Fisk, an eight-year employee, in 2009, MCC required him to sign a waiver to receive severance pay and benefits. Fisk later sued, claiming the waiver was unenforceable under the Older Workers Benefit Protection Act (OWBPA), a 1990 amendment to the ADEA.

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OWBPA assures that age discrimination claims may  not be waived by an employee as a condition of receiving a severance package unless an employer "strictly complies" with very specific steps.

For example, an employer must tell an employee that before signing an ADEA waiver he should see a lawyer to explain the terms. The waiver Mountain Coal asked Fisk to sign did not include such a provision, and the court found the waiver invalid. According to the federal trial court in Colorado, Fisk retained his right to sue.

According to Dan Kohrman, a senior attorney for the AARP Litigation Foundation, the decision is significant. "Because of the OWBPA," Kohrman says,  "some victims of age discrimination  can challenge age discrimination when they are terminated despite waivers they are routinely asked to sign upon termination, which declare that terminated employees  cannot sue."

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In other words, simply because you signed an agreement not to sue doesn't necessarily mean you can't. Be sure to consult with an attorney before signing any such waiver, and don't be reluctant to seek legal counsel even if you've already signed one.


Photo:  courtneyk /iStockPhoto


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