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If you find that [plaintiff] has established by a preponderance of the evidence that [defendant] [describe employment action] because of [plaintiff’s] age, then you must consider the defense alleged by [defendant] that [plaintiff] knowingly and voluntarily consented to a waiver of [plaintiff's] ADEA claims.
Federal law permits [plaintiff] to waive ADEA rights provided that, at a minimum, [defendant] proves by a preponderance of the evidence that the following safeguards are met:
1. The waiver is part of an agreement between [plaintiff] and [defendant] that is written in a way that is intended to be understood by [plaintiff] or by the average individual eligible to participate;
2. The waiver specifically refers to rights or claims arising out of the Age Discrimination in Employment Act;
3. [Plaintiff] did not waive rights or claims that may arise after the date the waiver was executed;
4. [Plaintiff] waived rights under the ADEA in exchange for something of value beyond that to which [he/she] was already entitled; and
5. [Plaintiff] was advised in writing to consult an attorney before executing the waiver agreement.
[In this case, [plaintiff] has presented evidence challenging the validity of this waiver. Specifically [describe plaintiff’s evidence challenging waiver]. It is for you to determine whether or not the waiver was knowing and voluntary. In doing so, you must consider all the circumstances surrounding the signing of the waiver. [Defendant] has the burden of proving by a preponderance of the evidence that [plaintiff’s] waiver of ADEA rights was knowing and voluntary. The fact that the agreement complies with the minimum standards of Federal law does not necessarily mean that the waiver was knowing and voluntary.]
COMMENT The Older Workers Benefit Protection Act (OWBPA) permits workers to sign releases of ADEA claims, provided the waiver is knowing and voluntary and the minimum standards of the OWBPA are met. 29 U.S.C. § 626(f)(1).21 The proponent of the release has the burden to prove that the minimum statutory requirements for the release have been satisfied. See Ruehl v. Viacom, Inc., 500 F.3d 375, 381 (3d Cir. 2007) (waiver invalid where employer could not establish that the employee was provided the necessary information required by the OWBPA: “Having the employee say he was informed in writing — when he was not — does not satisfy the OWBPA requirements.”) (emphasis in original). The minimum statutory requirements for a valid waiver are as follows:
(A) 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;
(B) the waiver specifically refers to rights or claims arising under [the ADEA];
(C) the individual does not waive rights or claims that may arise after the date the waiver is executed;
(D) the individual waives rights or claims only in exchange for consideration in addition to anything of value to which the individual already is entitled;
(E) the individual is advised in writing to consult an attorney prior to executing the agreement.
29 U.S.C. § 626(f)(1). See Lewis and Norman, Employment Discrimination 456-57 (2d ed. 2004) for a discussion of the statutory requirements.
The statutory factors are minimum requirements. See Wastak v. Lehigh Valley Health Network, 342 F.3d 281, 295, n.8 (3d Cir. 2003) (noting that the OWBPA establishes “a floor, not a ceiling”). Whether a waiver is knowing and voluntary is determined by a totality of the circumstances. See Bennett v. Coors Brewing Co., 189 F.3d 1221, 1229 (10th Cir. 1999) (noting that the statutory factors governing a waiver under OWBPA are minimum requirements, and holding that non-statutory factors such as fraud and duress may render an ADEA waiver not knowing and voluntary); Griffin v. Kraft General Foods, Inc., 62 F.3d 368, 373-74 (11th Cir. 1995) (validity of waiver of ADEA claims must be determined under the totality of the circumstances). But if the waiver agreement on its face meets the minimum statutory requirements of OWBPA, the issue of whether or not the plaintiff has given a knowing and voluntary consent to a waiver of ADEA claims will only reach the jury if the plaintiff has come forward with specific evidence sufficient to raise a question as to the validity of the waiver. The court in Pierce v. Atchison Topeka & Santa Fe Ry., 110 F.3d 431, 438 (7th Cir. 1997), explained why the plaintiff has a burden of production when contending that a release conforming with the statute was not knowing and voluntary:
To place upon the employer the burden of demonstrating that an otherwise unambiguous release of claims was not signed knowingly and voluntarily risks undermining the usefulness of waivers by clouding them in uncertainty. This danger is compounded by the difficulty of demonstrating that someone's actions were knowing and voluntary, an assumption about human behavior which the law typically indulges as a matter of faith.
This line of reasoning has force.... [W]e believe that the concerns it reflects are adequately addressed by placing the burden of production, rather than the burden of proof, on the party who... seeks to invalidate a waiver of federal rights. Such a rule does not mean that a claim that a release was not executed knowingly and voluntarily will necessarily reach a jury. The plaintiff must come forward with specific evidence sufficient to raise a question as to the validity of the release.... A bald assertion of misrepresentation by the employer, standing alone, is legally insufficient. Moreover, certain factors, such as the participation of an attorney in negotiating the release, will give rise to a presumption that the waiver was knowing and voluntary. As for the difficulty of establishing that an employee did not act knowingly and voluntarily, a burden which some have likened to "proving a negative," we believe that this difficulty is minimized by requiring the employee to produce specific evidence of factors that vitiated his consent to the release. The court in Pierce emphasized — as does the instruction — that while the plaintiff has a burden of production when the release conforms to minimum statutory requirements, it is the defendant’s burden to prove that the release was knowing and voluntary once the plaintiff’s burden of production is met.
An employer who obtains a waiver through a nonconforming release cannot defeat an ADEA claim simply because the plaintiff did not tender back the consideration paid in exchange for the waiver. Oubre v. Entergy Operations, Inc., 522 U.S. 422, 427-28 (1998).
(Last Updated July 2019)
21 “It is hornbook law that employers can require terminated employees to release claims in exchange for benefits to which they would not otherwise be entitled.” E.E.O.C. v. Allstate Ins. Co., 778 F.3d 444, 449 (3d Cir. 2015). In Allstate, the employer conditioned its conversion of terminated at-will employees into independent contractors on the employees’ signing releases of all existing claims (including but not limited to discrimination claims). The Court of Appeals rejected the EEOC’s argument that there was inadequate consideration for such releases, reasoning that there was no “good reason why an employer cannot require a release of discrimination claims by a terminated employee in exchange for a new business relationship with the employer.” Allstate, 778 F.3d at 451.