Release that Does Not Comply with OWBPA Still Valid to Waive State Claims

By now, most employers know that to obtain a valid release of a federal age discrimination claim brought under the Age Discrimination in Employment Act (ADEA), the release must comply with the Older Workers Benefit Protection Act (OWBPA).  The release must: specifically refer to rights or claims under the ADEA; advise the employee to consult with an attorney; provide the employee with 21 days to consider the offer;   give the employee 7 days to revoke their signature; and can only waive claims up to the date of the release.

A recent Ninth Circuit Court of Appeals decision indicates that where an employee signs a release of state law claims and a federal age discrimination claims in exchange for a severance payment, and the release does not comply with the OWBPA, the release of state law claims is still valid.  The decision, which is unpublished, is a helpful reminder to employers that non-compliance with the OWBPA will likely have no effect on the release of an employee’s state law claims, provided the release is supported by consideration and otherwise valid.


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