The Older Workers Benefit Protection Act | Mann & Elias
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The Older Workers Benefit Protection Act


Traditionally, the Age Discrimination In Employment Act (ADEA) was the standing law for age discrimination against older employees. Recently, there has been an addition called the Older Workers Benefit Protection Act (OWBPA). It addresses worker benefits and the right to sue that doesn’t get covered in the previous act.

The new OWBPA act now makes it illegal for employers to do any of the following actions:

  • Require Older Workers To Waive Their Rights
  • Target Older Workers For Staff-Cutting
  • Use Age As A Basis For Discrimination

If you’re currently confused about any of these additions to the ADEA, contacting an employment attorney in Los Angeles is in your best interest. They can assist you in determining what practices are considered discrimination and which ones aren’t. In addition, they can work with you to develop processes for your business that can ensure certain types of discrimination do not exist.

Protecting Worker Benefits

As age discrimination lawyers in Los Angeles will tell you, this new Act works explicitly to protect the benefits offered to older workers. When it comes to disability benefits, pensions, fringe benefits, retirement benefits, health insurance, and life insurance, the OWBPA bans age discrimination practices. Many businesses may have unintentionally discriminated against their older employees for a good reason.

It’s widespread knowledge that things like health insurance tend to be more expensive for older adults. When it comes to being an employer, it can cost you significantly more money to insure elderly workers than younger ones. Any ageism attorneys for the workplace will tell you that employers fall into the trap of offering less insurance for elderly workers, which gets them into deep legal trouble.

This new Act helps to provide equal benefits to all workers within reason. The specific types of benefits that an employer offers are broken down into particular categories. Each has its subsets of rules regarding what’s considered reasonable and falls into being workplace discrimination. You should check with your LA workplace attorney to determine the specifics regarding the benefits that your business offers its employees.

Rules Regarding Waiving Of Employee Rights

Employers are allowed to ask employees to give up their right to sue the company. But, the OWBPA has provided some new standards for language use to safeguard the best interests of older employees when offered these waivers.

Technically, these waivers are known as a release or covenant not to sue the employer. In the event of a workplace dispute, an employer and employee can agree to have a release waiver signed. The employee will receive an incentive from the employer to leave voluntarily.

Typically, employers are allowed to enhance a severance pay package to an older worker. If signed, you release your right to sue. The company must also give employees a minimum of 21 days to decide whether or not they want to sign the waiver. If provided to a large group within the company, that period goes up to 45 days.

Lastly, the employer must give the employee seven full days after they sign the waiver to revoke their decision if need be. These waivers are addressed multiple times throughout the new OWBPA. Some other common restrictions are as follows:

  • Writing The Waiver In Understandable Language
  • Employer Must Offer Something Of Value For The Signature
  • You Must Be Advised Of Your Right To Legal Counsel

As an employer, it’s essential to realize what these new requirements are. You’re legally bound to follow them. If you don’t, the waiver may be ruled invalid in a court of law. In the case of Oubre v. Entergy Operations, Inc., the release was not considered legally valid. The employee could sue for age discrimination and keep the severance package given to her from the company.

Room For Negotiations

In some cases, your employer may need to reduce the staff. To protect against legal repercussions, the OWBPA now gives older workers the legal protection they need to negotiate terms. Labor attorneys for the workplace can assist you in this negotiation period.

Let’s say that your employee has offered you an incentive to leave voluntarily. They want to try and avoid a wrongful discharge lawsuit but still need to reduce staffing. You can counteroffer your employer with a different incentive. For example, you may return to their offer and ask for twice the severance pay. If you noticed that other older staff members were given incentive options to quit voluntarily, you might want to consider creating a group offer for a better incentive outcome.

Do I Need A Lawyer For Age Discrimination

If you’ve experienced workplace discrimination because of your age, then it’s time to consult experienced and personable age discrimination attorneys in Los Angeles. Even if you’re not sure whether or not you have a legal case, it’s best to seek counsel. They can inform you of your legal rights and assess your situation.

All workers have rights. The Older Workers Benefit Protection Act gives those older workers more specific rights to ensure they’re not discriminated against in the workplace. If you’ve experienced discrimination due to your age and you’re over 40 years old, then you can file a complaint with the EEOC. The EEOC will work with you and the employer to come up with a favorable outcome. However, if you believe that outcome is not favorable to you, you can always opt for filing a lawsuit against your employer or former employer.


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