The Older Workers’ Benefit Protection Act (OWBPA) was passed in 1990 as an amendment to the Age Discrimination in Employment Act. The OWBPA provides that for an older worker to sign a binding waiver of claims, the employer must include a provision that the worker has 21 days in which to sign the waiver and 7 days after signing in which the worker can reconsider his signature. The waiver must be legible and specifically refer to waiving any ADEA rights. See EEOC Fact Paper. The employer must tell the potential age claimant that he has a right to speak with a lawyer before signing the waiver.
What if the worker accepts severance pay at the time he signs the release? Must the worker return the severance pay in order to rescind his signature? Not under the terms of Oubre v. Entergy Operations, 522 US 422 (1998). If the release does not comply with the OWBPA, then the worker need not return or "tender back" the severance pay in order to still file suit for age discrimination. See EEOC Guidance, Note 13.
Passage of the OWBPA was based in part on the recognition that when an older worker is terminated, they may be leaving employment with no resources on which to live. That is why Oubre provides they need not return a severance payment related to the waiver. Most workers who are terminated leave with little resources. But, Oubre only applies to age claims. If you sign a waiver releasing several claims, such as age claims, ethnic origin claims and race claims, then you could possibly rescind only the signature related to the age claim. Your signature remains valid in regard to the race and ethnic origin claims, whether you return the severance pay or not.
Some plaintiffs have tried to argue that when they signed a waiver releasing multiple claims, then the waiver as a whole is not valid because it failed to meet the OWBPA requirements. Wrong, The failure to meet the requirements of the OWBPA only applies to any potential age claim. Your race claim would remain barred or waived. The waiver is effective in regard to other non-age related claims. Same waiver, same provisions. But, age claimants get a break, while others do not.
The reality is that most people who are fired are extremely upset at the time. Even if they do not shed tears, they are are still too disturbed to think clearly. They do sometimes sign things they should not and accept payments they should not accept. Age claimants can undo such agreements. The others cannot.