Why do you think an employer must follow such strict guidelines when creating a waiver? Do you think the guidelines are correct? How would you change them?

Issue: Whether the receipt of any consideration given in exchange for the waiver must be returned in order to pursue a valid claim under the ADEA and whether the waiver, signed by the employer was valid under the OWBPA to prevent a claim under the ADEA.

Facts: Oubre who, as part of termination agreement, signed release of all claims against employer in exchange for severance pay, subsequently sued employer for age discrimination in violation of the Age Discrimination in Employment Act (ADEA). Entergy moved for summary judgment, claiming Oubre had ratified the defective release by failing to return or offer to return the monies she had received. The United States District Court for the Eastern District of Louisiana    granted summary judgment in favor of employer, and employee appealed. The Court of Appeals for the Fifth Circuit affirmed, and certiorari was granted.

Decision: As the release did not comply with the OWBPA’s requirements, it cannot bar Oubre’s ADEA claim. The OWBPA provides: “An individual may not waive any [ADEA] claim... unless the waiver is knowing and voluntary .... [A] waiver may not be considered knowing and voluntary unless at a minimum” it satisfies certain enumerated requirements, including the three listed above. Thus, the OWBPA implements Congress’ policy of protecting older workers’ rights and benefits via a strict, unqualified statutory stricture on waivers, and this Court is bound to take Congress at its word. By imposing specific duties on employers seeking releases of ADEA claims and delineating these duties with precision and without exception or qualification, the statute makes its command clear: An employee “may not waive” an ADEA claim unless the waiver or release satisfies the OWBPA’s requirements. Oubre’s release does not do so. Nor did her mere retention of monies amount to a ratification equivalent to a valid release of her ADEA claims, since the retention did not comply with the OWBPA any more than the original release did. Accordingly, even if Entergy has correctly stated the contract ratification and equitable estoppel principles on which it relies, its argument is unavailing because the authorities it cites do not consider the OWBPA’s commands. Moreover, Entergy’s proposed rule would frustrate the statute’s practical operation as well as its formal command. A discharged employee often will have spent the monies received and will lack the means to tender their return. These realities might tempt employers to risk noncompliance with the OWBPA’s waiver provisions, knowing that it will be difficult to repay the monies and relying on ratification.