Mowery Youell & Galeano, Ltd.
Mowery Youell & Galeano, LTD. Attorneys at Law
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A severance agreement is different for a 40-plus employee

Let us say the company you have served as a member of upper management no longer requires your services.

The severance agreement your employer offers must be tailored to your specific situation. There are special requirements in such agreements for departing employees over the age of 40.

The well-drafted document

Every severance agreement must be carefully drafted. To be enforceable if a court proceeding becomes necessary, it must contain specific language acceptable to the Equal Employment Opportunity Commission. Confidentiality, non-compete or non-disparagement provisions cannot be too broad. For example, they cannot infringe upon the rights of the departing employee to file a discrimination charge or to cooperate with a government entity in an investigation of possible corporate wrongdoing.

Time to consider and reconsider

When it comes to drafting a severance agreement for an employee over the age of 40, there are special requirements as guided by the Age Discrimination in Employment Act and the Older Workers Benefit Protection Plan. To begin with, as the departing employee, you must have the federal minimum of 21 days in which to consider the terms of the agreement. Even after you execute the severance agreement, your erstwhile employer must grant you another seven days to mull over what you signed and revoke the agreement if you have a change of heart.

Words matter

The severance agreement must be in writing with language that is plain and clear. The author must avoid using complex sentences and legal jargon that would make the agreement difficult to understand. The agreement must make reference to the ADEA, or it will be unenforceable. It must not mislead, misinform or exaggerate. As a departing older employee, you must clearly understand the benefits offered in the agreement, as well as the limitations imposed. In addition, the agreement must advise you to seek legal counsel to ensure the document is properly drafted with terms that are fair to you.

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