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NYC Litigation Blog

Friday, May 17, 2019

Older Workers Benefit Protection Act (OWBPA)

The Older Workers Benefit Protection Act (OWPA) is an an amendment to the Age Discrimination in Employment Act (ADEA). Its purpose is to protect employees from discrimination on the basis of age. This usually means preventing an employer from doing things like firing only older staff members when making cuts or discriminating based on age in regards to employee benefits.

What is the Older Workers Benefit Protection Act (OWBPA)?

The OWBPA provides several key protections for employees potentially facing discrimination based on age. The OWBPA prevents an employer from:

  • Discriminating in benefits based on an employees age
  • Firing only older employees when making reductions in staff
  • Forcing older workers to waive legal rights without proper safeguards in place

    Employee benefits include things like:

  • Health insurance
  • Life insurance
  • Retirement accounts
  • Pensions
  • Disability benefits

Under the OWBPA, employers, under most circumstances, are obligated to give equal benefits to both older and younger employees. If lesser benefits are provided to older employees, an employer may remain OWBPA compliant by seeing that the older employees are receiving additional benefits that make up the difference. 

The OWBPA also puts protections in place that shield older workers from being targeted in staff reduction programs. Historically, older workers have been at heightened risk of being targeted when staff cuts need to be made. Older workers are usually more expensive to keep on than younger workers because they have increased their salary over the years and usually receive more benefits.

If an employer is looking to reduce staff by cutting older employees, they will usually ask that the employee sign a waiver releasing their right to sue the company. This is intended to protect the company from something like an age discrimination lawsuit. The OWBPA requires that this kind of waiver contain specific language. The waiver must also be understandable to the average person. Excessive and confusing legal jargon will not suffice. Additionally, the waiver must specifically say that it is covering your rights granted under the ADEA. Without the waiver meeting all of these specific requirements, it will be void. There is no room for maneuvering. This issue has even been addressed and reaffirmed by the U.S. Supreme Court.

An employee must be given a minimum of 21 days to decide whether or not sign the waiver. If the waiver was presented to a group of employees, each of these employees must be given 45 days to decide whether or not to sign the waiver. Once the waiver is signed, however, you only have seven days to revoke your decision to sign.

In addition to meeting the waiver requirements, an employer must also offer the employee something of value in exchange for signing the waiver. This thing of value must be above and beyond what the employer may already owe the employee. Oftentimes, an employer will offer something like a severance package that is larger than the standard one provided by the company.

Protecting Employees from Age Discrimination

Older workers are particularly vulnerable to potential discriminatory acts of employers on the basis of age. If you think your rights have been violated, contact Attorney Thomas M. Lancia. Providing dedicated legal counsel that you can trust, Attorney Lancia is dedicated to fighting for the rights of his clients.


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