Wrong Language Invalidates Age Discrimination Release
A federal court in Colorado in May 2014 denied summary judgment to an employer that sought to enforce an age discrimination release. The court held that while the employer had constructively complied with the Older Worker Benefit Protection Act (“OWBPA”), the law required “strict compliance” in order to have an effective release of age discrimination claims and the employer had not strictly complied.
The employer included the following language in the age release: “The employee has the opportunity for consideration and consultation with [his] attorney” and “the employee may discuss this agreement with his/her attorney … on a confidential basis to the extent necessary to interpret the agreement.” The court found this language did not comply with the OWBPA as it did not “advise” the Plaintiff to consult with an attorney prior to signing, and did not even state that he “should” or “ought to” consult with one before signing. The court also found it irrelevant that the Plaintiff admitted he consulted with a workers’ compensation attorney before signing the document because of the defective release language.
The Plaintiff challenged various other portions of the release, arguing that it did not comply with the more complex portions of the OWBPA release involving employee layoffs. Although the court found that the employer had complied with the other provisions, it rejected summary judgment because of the absence of required advice to seek legal counsel before signing.
The court also held that the Colorado common law, tender-back rule would not apply to the release of state law claims under the state discrimination statute. Under Colorado law, a party who challenges a release he signed must tender-back the consideration he received as a condition precedent. However, the court, looking to federal law, noted that the doctrine would not apply because it would render ineffective the OWBPA requirements.
The lesson for employers and practitioners is to scrupulously follow the statute and regulations governing age releases, particularly in the case of layoffs. This employer issued sixty (60) releases and paid consideration which did not ultimately release any age discrimination claims. Clients are well served to seek help in drafting such documents from qualified legal counsel.