The Bureau of Labor Statisticsreports that in the 15months since Jan. 1, 2006,there have been over 17,000 masslayoffs — defined as each involvingthe reduction of at least 50 employeesfrom a single establishment.[FOOTNOTE 1]When conducting group terminationsemployers generally want toobtain valid and enforceable releases,including waiver of claims underthe Age Discrimination in EmploymentAct (ADEA), in exchange forseverance.[FOOTNOTE 2] Understanding the intricaciesof the Older Workers BenefitsProtection Act (OWBPA),[FOOTNOTE 3] a 1990amendment to the ADEA — includingthe OWBPA’s information disclosurerequirements — can be the differencebetween obtaining valid waivers orunenforceable releases and potentiallitigation.
One element of the disclosurerequirements is properly identifyingthe decisional unit — defined by EqualEmployment Opportunity Commission(EEOC) regulations as “that portion ofthe employer’s organizational structurefrom which the employer chosethe persons who would be offeredconsideration for the signing of awaiver and those who would not beoffered consideration for the signingof a waiver.”[FOOTNOTE 4] This article examines theOWBPA, the controlling regulationsand recent case law, and providespractical guidance on how to properlyidentify the decisional unit.
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