Today’s post comes from guest author Anthony L. Lucas, from The Jernigan Law Firm.

When an employee settles a workers’ compensation claim, the employer often wants to terminate the employee and is cautious because of potential age discrimination. The Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621 et seq. (2015), prohibits companies with 20 or more employees from discriminating against a person (40 years of age or older) because of his or her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.

An individual who has been discriminated against because of his or her age may be entitled to back pay, reinstatement, hiring, promotion, front pay, liquidated damages, and court costs and attorney fees.

To avoid potential discrimination claims after a workers’ compensation settlement, the employer often seeks an ADEA waiver at the same time. For an ADEA waiver to be enforceable, it must:

• Be in writing and understandable;

• Specifically refer to ADEA rights or claims;

• Not waive an individual’s future rights or claims;

• Be in exchange for valuable consideration in addition to anything of value to which the individuals is already entitled;

• Advise the individual to consult with an attorney before signing the waiver;

• Provide the individual with a certain amount of time to consider the agreement:

  • 21 days for individual agreements

  • 45 days for group waiver agreements

  • A “reasonable” amount of time for settlements of ADEA claims

• Provide a period of at least 7 days following the execution of the agreement, in which the agreement is not effective or enforceable, in which the individual may revoke the agreement.

Some termination agreements may not be enforceable, and the individual may have a valid claim to pursue under the ADEA.