On June 5, 1998, the EEOC published a final regulation to be effective July 6, 1998 on agreements that waive rights and claims under the Age Discrimination in Employment Act (ADEA). The regulation states the EEOC's position that:
- Written waiver agreements should avoid complicated sentences whenever possible and must not mislead, misinform, or fail to inform the affected individuals.
- Although the waiver of rights or claims that arise following the execution of a waiver is prohibited, ADEA does allow for the enforcement of agreements to perform future employment-related actions such as the employee's agreement to retire or otherwise terminate employment at a future date so long as it is consistent with statutory requirements.
- The 21- or 45-day consideration period runs from the date of the employer's final offer, unless the parties otherwise agree.
- An individual may sign a waiver prior to the end of the 21- or 45-day consideration period, as long as the shortening of this time period is not induced through fraud, misrepresentation, a threat to withdraw or alter the offer prior to the full time period or by offering different terms to individuals who sign the waiver prior to the running of the full time period.
- The 45-day consideration period applies to any program in which waivers are sought from 2 or more individuals, whether the program is voluntary or involuntary (e.g., a reduction in force).
- The 7-day revocation period cannot be shortened by the parties, by agreement or otherwise.
- An employer is given considerable leeway in identifying the appropriate decisional unit for purposes of providing information about a group program to the potential participants.
- In information given to group participants, the ages of individuals may not be banded together (e.g., ages 20 - 30).
- If participation in the group program is voluntary as to some, but involuntary as to others, the distinction must be noted in the information provided to participants.
- If a group program is implemented in stages, later participants must be given cumulative information that includes information about participants in earlier stages, but there is no duty to supplement the information given to participants in earlier stages, so long as the information given at the time conformed with the requirements.
- Waivers signed in connection with settling an EEOC charge need not comply with the 21-day consideration period and 7-day revocation period, but compliance with these time periods will satisfy the requirements that the individual be given a reasonable period of time to consider the settlement agreement.
- Waivers cannot prohibit the individual from filing a charge with or participating in an EEOC investigation or impose any penalties for same. 29 CFR 1625.22.