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Layoffs, severance, and EEOC laws

From law.com:

"Thanks to new EEOC age discrimination regulations now in place, companies are essentially powerless to stop courtroom challenges and the considerable expense that goes along with them -- nor can they confidently predict a favorable result in a given waiver dispute with an older worker -- at least until the latest EEOC rules are actually tested in appellate courts.

Among other things, the new EEOC rules insist that older laid-off workers must be able to challenge in court the legality of any waiver of the right to sue without first having to give back any severance pay they've already received. Also more clearly verboten under the new EEOC rules are clauses in severance contracts that call for the exiting 40-and-older workers to pay for court costs and attorneys' fees, simply for suing. Nor can the employer void retirement or other benefits it had promised under the final directives, even if its liability waiver is challenged in court. The new EEOC rules also reaffirm 1998 agency regulations that reflected the act's provisions requiring downsizing employers to help make sure an older laid-off worker's liability waiver is "knowing and voluntary."

In return for satisfying both these new and old requirements, the EEOC late last year reassured downsizing employers that the resulting waivers obtained from their laid-off workers would afford them an affirmative defense against any future age discrimination lawsuit. On the other hand, the EEOC's latest word on the subject made it clear that the burden is on the employer to prove
in court its waivers are valid. "

(See the original article here.)