If you are in the process of negotiating a settlement agreement with an employee, it is critical to ensure that you comply with all of the requirements set forth in the Older Workers Benefit Protection Act (OWBPA). This law, which was enacted in 1990, is designed to protect older workers from discrimination in employment decisions and provides specific requirements that must be met for any settlement agreement involving an employee aged 40 or older.

The following are some of the key OWBPA requirements that must be met in order for a settlement agreement to be considered valid and enforceable:

1. Written Agreement – The settlement agreement must be in writing and must be written in a manner that is understandable to the employee.

2. Waiver of Rights – The agreement must include a clear and specific waiver of the employee`s rights under the Age Discrimination in Employment Act (ADEA).

3. Consideration – The employee must be given something of value in exchange for signing the agreement. This might include a severance payment, continuation of health benefits, or some other form of compensation or benefit.

4. Consultation with an Attorney – The employee must be given the opportunity to consult with an attorney before signing the agreement. This consultation must be provided at the employer`s expense and the employee must be given a reasonable amount of time to consider the agreement before signing it.

5. Revocation Period – The employee must be given a period of at least 21 days to consider the agreement and must be allowed to revoke the agreement within seven days after signing it.

6. Group Waivers – If the settlement agreement is part of a group termination program, the employer must provide certain information to the employee about the program and must give the employee at least 45 days to consider the agreement.

7. Knowing and Voluntary – The employee must sign the agreement knowing and voluntarily. The employer must keep records of the entire negotiation process to ensure that the employee entered into the agreement willingly and without coercion.

In summary, if you are negotiating a settlement agreement with an employee aged 40 or older, you must ensure that you comply with all of the requirements set forth in the OWBPA. Failure to do so could result in the agreement being deemed invalid and unenforceable, exposing your company to potential legal action. Therefore, it is important to work with an experienced attorney who can help guide you through the negotiation process and ensure that all legal requirements are met.