General Release And Waiver printable pdf download

Use of Waivers and Releases of Claims with Incentivized

Voluntary Separation Programs

Where the Department has conducted incentivized voluntary separation programs, it has consistently

been the Department’s policy to require waivers and releases of claims from employees separating. A

voluntary separation program is considered to be incentivized if severance above that provided to

involuntarily separated employees is offered. The Department developed a sample waiver and release

of claims for these purposes that has been quite successful and is set forth below. For such waivers to

be binding, an employee must receive consideration greater than that to which the employee would

otherwise be entitled upon separation from employment.

Waivers are mandatory bargaining subjects. Therefore, if the affected employees are represented for

purposes of collective bargaining by a labor organization and the parties’ collective bargaining

agreement does not contemplate requirement of execution of a waiver as a condition for receiving

severance pay, the employer must notify the union of its intent to use a waiver in connection with the

separation program and give that union ample opportunity to bargain regarding that matter. If, as

provided in the sample waiver, the employer seeks federal age discrimination waivers, employees must

be given 45 days to consider the waiver and seven days after the date of execution of the waiver to

revoke their agreement to be bound by the waiver. In such cases, the “census” data (regarding the ages

and classifications of employees eligible to participate in the separation program and of employees not

eligible to participate) required under the Older Workers Benefit Protection Act must also be provided.

See 29 U.S.C. § 626(f)(1)(H).

Severance pay plans are also generally welfare benefit plans within the meaning of the Employee

Retirement Income Security Act (ERISA). If there is a severance pay plan that does not provide that

employees separating must execute a waiver in order to receive severance under the plan, the plan will

have to be amended to provide notice to participants, consistent with the terms of the plan and

applicable legal requirement, before employees can be required to execute a waiver in order to receive

severance pay.

II.

Self-Select Request for Separation

The Department has over the years moved away from use of incentivized voluntary separation

programs. When employers require employees to sign full claims waivers in connection with voluntary

separation programs, employees must be given 45 days to consider a waiver and 7 days after the date of

execution of the waiver to revoke their agreement to be bound by the waiver if waiver of federal age

discrimination claims is sought. In cases when Departmental contractors’ voluntary separation

programs involve provision of severance pay up to the amount that would be provided pursuant to an

involuntary separation program, contractors may choose not to require employees to execute full

waivers of all legal claims.

The Department developed an application form for employees participating in self-select separation

programs that are not incentivized. By clearly establishing the voluntary nature of the employees’

decision to participate in the separation program, the application has effectively prevented the assertion

of any age or other discrimination claims without triggering the 45 and 7-day schedule required for

General Release And Waiver