Under federal and New Jersey state law, age discrimination is an unlawful employment practice. If you have questions related to this area of law, contact a New Jersey employment discrimination attorney. The federal Age Discrimination in Employment Act (ADEA) of 1967 prohibits discrimination based on age involving employees who are at least forty years old. Workers cannot waive their rights under the ADEA unless employers to make specific written disclosures under the Older Workers Benefit Protection Act (OWBPA) of 1989. A lawsuit currently pending in New Jersey alleges that the defendant presented the plaintiff with a proposed severance agreement that violated the OWBPA. The defendant argued that the severance agreement was moot because the plaintiff never signed it. The court rejected this argument. It found that the severance agreement could serve as evidence of a broader pattern of age discrimination in violation of the ADEA. Fowler v. AT&T, Inc., et al, No. 3:18-cv-00667, mem. op. (D.N.J., Oct. 31, 2018).
The ADEA prohibits age discrimination against workers who are forty years of age or older. 29 U.S.C. §§ 623(a), 631(a). The statute allows exceptions, such as “compulsory retirement” of an employee who is at least sixty-five years old, has worked for at least two years “in a bona fide executive or a high policymaking position,” and meets certain criteria related to retirement benefits. Id. at § 631(c).
The primary purpose of the OWBPA is to prevent discrimination against older workers with regard to fringe benefits like health insurance and retirement plans. For example, the statute requires employers to incur the same costs for benefits provide to workers age forty or older as are provided to younger workers, and prohibits refusal to hire an older worker solely in order to avoid the requirement to provide benefits. Id. at § 623(f)(2). It also states that employees cannot waive their rights under the ADEA unless the waiver is “knowing and voluntary,” based on specific disclosures. Id. at § 626(f).
The plaintiff in Fowler alleges that her employer placed her on “surplus status,” which gave her a specified period of time in which to find another job, after which her position would be terminated. Fowler, mem. op. at 4. She claims that the defendant presented her at that time with a “General Release and Waiver” that would provide her with severance pay in exchange for a waiver of various legal claims, including claims under the ADEA. She did not sign this document. She later filed suit for age and disability discrimination because of the surplus status designation and later termination.
The defendant moved to strike the portions of the plaintiff’s complaint that contained the alleged OWBPA violations. It cited a ruling that held that a plaintiff cannot claim a violation of the OWBPA if they did not sign the allegedly invalid document. Lawrence v. Westminster Bank N.J., 98 F.3d 61 (3d Cir. 1996). The court disagreed and denied the motion, noting that Lawrence merely held that an employee who did not sign a waiver never waived any rights, and therefore could not claim a violation of the OWBPA. The plaintiff in Fowler did not assert an OWBPA violation as a cause of action, but rather alleged that the non-compliant waiver was evidence of age discrimination.
The Resnick Law Group’s team of experienced and knowledgeable employment attorneys represents employees, former employees, and job seekers in New Jersey and New York. To schedule a confidential consultation to see how we can help you, please contact us today online, at 973-781-1204, or at 646-867-7997.
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Age Discrimination Alleged in New Jersey Lawsuits, The New Jersey Employment Law Firm Blog, July 16, 2015