The Older Workers Benefit Protection Act decides whether the age-claim release in your severance agreement is worth anything. Get one element wrong and the employee keeps the money and the claim. This is the employer's plain-English reference: what the law requires, the deadlines, the group-termination disclosure most packages botch, and the checklist to run before anyone 40 or older signs.
OWBPA is a 1990 amendment to the Age Discrimination in Employment Act (ADEA). The ADEA protects employees 40 and older; OWBPA sets the conditions under which one of those employees can validly waive an age claim. Because nearly every severance agreement asks the departing employee to release all claims, OWBPA quietly governs a large share of the severance agreements signed in the United States. Its test is whether the waiver was knowing and voluntary, and Congress defined that phrase with a specific list of requirements rather than leaving it to judgment.
| Situation | Consideration period | Revocation period | Extra requirement |
|---|---|---|---|
| Individual termination (one employee) | At least 21 days | 7 days after signing | — |
| Group or class termination, exit-incentive program, RIF | At least 45 days | 7 days after signing | Written decisional-unit disclosure (below) |
| Waiver settling an already-filed EEOC charge or lawsuit | "Reasonable" time | Not required | Must still be knowing and voluntary |
Three details trip employers up. The employee may sign before the window ends, but only voluntarily — an agreement that offers a bonus for signing within 5 days, or that says the offer expires early, invites a challenge. The 7-day revocation period cannot be waived, so the agreement cannot be "effective on signing." And if the employer materially changes the agreement after presenting it, the consideration clock restarts unless the parties agree otherwise in writing.
Every one of these must be present. Courts do not weigh them; a missing element defeats the waiver.
Check: The release is readable by the specific employee, accounting for education and, where relevant, primary language. Dense legal boilerplate with no plain-English explanation is the classic failure.
Check: The agreement names the Age Discrimination in Employment Act. A release of "all claims under federal law" without naming the ADEA does not satisfy this element.
Check: The release is limited to claims existing as of the signing date. Language releasing "any and all claims, now or in the future" over-reaches and can void the waiver.
Check: The severance is something extra — not accrued wages, earned PTO, or benefits the employee was already entitled to receive.
Check: The agreement itself, in writing, advises the employee to consult an attorney before signing. A verbal suggestion, or a mention only in a cover email, does not count.
Check: The correct window is stated, and nothing in the package pressures the employee to sign early.
Check: The revocation right is stated, the agreement is not effective until the period ends, and the payment schedule respects it.
Check: For any group program, a written disclosure lists the decisional unit, the eligibility factors, any time limits, and the job titles and ages of every employee selected and every employee in the same unit who was not selected. This is the element most do-it-yourself severance packages omit entirely.
When two or more employees are offered severance under a common program, OWBPA requires more than a longer clock. The employer must hand each affected employee a written disclosure that answers, in effect, "who was considered and who was picked." Three parts consistently go wrong:
The decisional unit. This is the group of employees from whom the employer chose who would be terminated — a department, a facility, a job category, or the whole company. Defining it too narrowly (to hide an age pattern) or too broadly (to dilute one) both create exposure. It should reflect how the decision was actually made.
Ages and job titles, both selected and not selected. The disclosure must list the job titles and ages of everyone in the decisional unit who was selected for the program and everyone who was not. Names are not required; ages are. Packages that list only the terminated employees fail.
Eligibility factors and time limits. The criteria used to select employees, and any deadline for the program, must be stated. "Business needs" is not a criterion.
A defective disclosure voids the waiver for every employee in the group, not just the one who noticed. In a 40-person reduction, that is 40 preserved age claims.
"This offer expires in 5 business days." The most frequent defect in agreements we scan. A shortened window, or an early-signing bonus, undermines the voluntariness of the waiver.
"This agreement is final upon signature." Contradicts the 7-day revocation right on its face.
A general release that never says "ADEA." Element 2 requires the specific reference.
Paying severance on signing. Not fatal by itself, but if the employee revokes, the employer has paid for a release it did not get; the agreement should address repayment or delay payment past the revocation window.
Treating a RIF like an individual termination. Using the 21-day window and skipping the disclosure for a group program is the error with the largest blast radius.
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The Older Workers Benefit Protection Act is a 1990 amendment to the Age Discrimination in Employment Act. It sets the conditions an employer must meet before an employee who is 40 or older can validly waive age-discrimination claims, typically in a severance or separation agreement. If any required element is missing, the age-claim waiver is generally unenforceable even though the employee kept the severance money.
An employee 40 or older must be given at least 21 days to consider a waiver offered in connection with an individual termination, or at least 45 days when the waiver is offered to a group or class of employees in an exit-incentive or group-termination program. The employee may sign sooner voluntarily, but the employer may not shorten the window or pressure the employee to sign early.
After signing, the employee has 7 days to revoke the waiver, and the agreement cannot become effective until that period has passed. Agreements that declare themselves final and irrevocable on signing, or that pay severance before the revocation window closes without addressing revocation, are a common defect.
Yes. When the waiver is offered to a group in connection with a layoff, RIF, or exit-incentive program, the 45-day window applies and the employer must also provide a written disclosure identifying the decisional unit, the eligibility factors, any time limits, and the job titles and ages of everyone selected and everyone not selected within that unit.
The waiver of age claims is not knowing and voluntary and is generally unenforceable. The employee can keep the severance and still bring an ADEA claim; under Supreme Court precedent an employee is not required to return the consideration first. Other released claims may survive depending on the agreement's severability language.
No. OWBPA governs waivers of claims under the Age Discrimination in Employment Act, which protects employees 40 and older. Employees under 40 can release other claims without the OWBPA timing and disclosure rules, though other federal and state requirements may still apply to the release.
This guide is general information about United States federal law as of its publication date, not legal advice, and does not create an attorney-client relationship. OWBPA's requirements interact with state law and with the facts of each termination; have a qualified employment attorney review any severance agreement before it is presented. DefensibleHR.ai is an AI scanner, not a law firm.