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Colorado federal court decision on age discrimination may apply in California

A federal court in Colorado has allowed a former worker to move forward with an age discrimination claim, in spite of the fact that he had signed a release and severance agreement when he lost his job during company downsizing.

In Foster v. Mountain Coal Company, LLC., the court disqualified the exemption of the age discrimination claim because it did not completely meet the requirements of the Older Workers’ Benefit Protection Act (OWBPA).

The court focused on the section of the OWBPA that the company did not meet: the “knowing and voluntary” requirement. The employer did not properly advise the worker to discuss the agreement with an attorney before signing it. The OWPBA is intended to guarantee that older workers have every chance to make informed choices about signing or not signing a release that includes an age discrimination claim.

In this case, the agreement stated that the plaintiff was voluntarily signing it, completely understanding its contents after he had the chance to consult with a legal advisor. But the past tense language meant the plaintiff had been given an opportunity — but was not specifically advised to act on that opportunity — to discuss the agreement with an attorney. The agreement should have clearly stated the plaintiff must be advised to talk to a lawyer before signing anything.

Across the United States, more cases of severance agreements that waive employee rights and are illegally couched in broad, vague terminology have been surfacing in the last five years. The EEOC has also been filing more cases of this nature. And these rulings could all become applicable in California.