Another release bites the dust

This is the image I have in mind every time an H.R. person, corporate counsel or defense lawyer learns that a Release they drafted fails to comply with the requirements of the Older Workers Benefits Protection Act ("OWBPA").OWBPA is an amendment to the Age Discrimination in Employment Act. It mandates that employers provide important information to older workers when they are terminated from employment and asked to release their legal claims. This information helps a terminated older worker do a sniff test for age discrimination. Failure to comply with OWBPA's standards means that any release of age discrimination claims given by the older worker is invalid and the older worker can sue for age discrimination in court.A recent case provides a good example of OWBPA at work. One of OWBPA's requirements is that the employer tell the older worker in writing to consult with a lawyer before signing the employer's release. In Foster v Mountain Coal Co, LLC, the employer advised that the "[e]mployee 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 deficient. While the employer's language might substantially comply with the statute, substantial...

Employers subvert enforcement of the anti-discrimination laws

The federal anti-discrimination laws represent the public policy of the United States to eliminate discrimination from the workplace. Both the EEOC and private parties enforce these laws, with the lion share of enforcement actions taken by private parties who assert claims. Employers know that if they can deter private parties from bringing claims, they will effectively free themselves from the rules and restrictions set forth in the statutes. Employers can deter claims after the fact by retaliating against employees who bring claims, or before the fact, by threatening employees with adverse consequences if they file claims, or by simply lying to employees in employee handbooks, release agreements and other documents by telling them they are prohibited from raising claims. Congress anticipated such maneuvers, however, and expressly prohibited employers from interfering either ex ante or ex post with a current or former employee's ability to oppose discrimination or participate in proceedings or investigations to enforce the anti-discrimination laws. These protected rights are non-waivable.  One recent case involving Trinity Health Corporation demonstrates how employers can get in legal trouble by attempting to deter or discourage their employees from exercising their non-waivable rights. Trinity Health Corporation, a national Catholic health care system based in Livonia,...