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 compliance is inadequate. The language failed to advise the plaintiff to consult with an attorney prior to signing the agreement; it did not even tell the plaintiff that he “should” or “ought to” consult with an attorney before signing the Agreement. Instead, it provided in passive language and in past tense that the plaintiff had the “opportunity for consideration and consultation with attorney,” and that the plaintiff may “may discuss the Agreement with his attorney.”
The Court held that OWBPA required the employer to affirmatively advise the employee to consult with an attorney, or to affirmatively advise the employee that he “should” or “ought” to consult with an attorney. The word “advise” means “to give advice to,” “caution,” “warn,” “recommend,” or “inform.” The employer’s language was passive and did not “advise” the plaintiff to do anything. The employer’s language only made the plaintiff aware of a right that he has, but it did not “advise,” him to take advantage of, act on, or take any action regarding that right. The Court ruled that an employee is not required to infer the right to consult an attorney from language such as “may” or “has had.”
The Foster case is another good lesson for employers; when it comes to OWBPA, don’t screw around with clever language that you hope will trick or lull an older worker into not consulting legal counsel. Just do what the statute tells you to do or your clever use of words might come back to haunt you.