Severance After 40

Severance After 40: The OWBPA’s Special Rules

If you are 40 or older, federal law treats your severance agreement differently — and more protectively — than anyone else’s. The Older Workers Benefit Protection Act (OWBPA) sets strict conditions before you can validly waive an age discrimination claim, and an employer that skips them has bought a release that may not hold. This page covers the rules and how to use them. For severance agreements generally, see our Severance Agreements overview.

What a Valid Age-Claim Waiver Requires

The OWBPA says an ADEA waiver is valid only if it is “knowing and voluntary,” and it defines that phrase with a checklist rather than a vibe:
  • The agreement must be written in plain, understandable language and specifically refer to ADEA rights or claims.
  • It cannot waive rights or claims arising after the date you sign.
  • It must give you something of value beyond what you were already entitled to receive.
  • It must advise you, in writing, to consult an attorney before signing.
  • You must be given at least 21 days to consider the agreement — 45 days if the termination is part of a group program.
  • After signing, you have 7 days to revoke, and the agreement cannot take effect until that period has passed.
Miss any element and the age-claim waiver is invalid — whatever the agreement says, and whatever you signed.

The Group-Layoff Disclosures: Read Them Carefully

When severance is offered to a group in connection with an exit incentive or termination program, the OWBPA requires more than extra time: the employer must disclose, in writing, the class or unit of employees covered by the program, the eligibility factors and time limits, and — most usefully — the job titles and ages of everyone selected for the program and everyone in the same unit who was not. Those disclosures exist so you can judge whether age drove the selections, and they are sometimes the first visible evidence that a “restructuring” fell disproportionately on older workers. Before signing, have someone who knows what to look for actually study them.

If the Waiver Was Defective, You May Still Pursue an Age Claim

Employers sometimes assume that once severance is paid, the release is safe — that an employee who wants to challenge it must first hand the money back. For age claims, the Supreme Court said otherwise in Oubre v. Entergy Operations, Inc. (1998): a release that fails the OWBPA’s requirements does not bar an ADEA suit, and the employee is not required to “tender back” the severance before bringing it. That rule gives a defective waiver real consequences — and gives you a reason to have yours examined even after signing.

Using the Rules, Practically

  • For agreements waiving ADEA claims, employees age 40 and older must receive the applicable statutory consideration period—generally at least 21 days for an individual waiver or 45 days for a qualifying group termination program. Review any stated deadline carefully before signing.
  • The consideration period is for consideration — use it to have the agreement and the disclosures reviewed, and to evaluate whether your termination itself supports a claim.
  • Revocation is a real right. If you signed under pressure on day one, the 7-day window is your second chance — but it is short and unforgiving.
  • The OWBPA governs the waiver, not the merits. Whether you have an age claim worth more than the severance is the underlying question — see our Age Discrimination pages for that law.

Frequently Asked Questions

Not for your age claims. If you are 40 or older, the OWBPA entitles you to at least 21 days to consider any agreement waiving ADEA claims — 45 days in a group layoff — plus 7 days to revoke after signing. An employer pressuring you to sign same-day is undermining the validity of its own release.

For age claims, possibly yes. Under Oubre v. Entergy Operations, a release that fails the OWBPA’s requirements does not bar an ADEA suit — and you are not required to hand the severance back first. If your agreement never mentioned your 21 days, your 7-day revocation right, or advice to consult counsel, it is worth having examined even now.

In a group termination program, the employer must disclose in writing who was covered, the eligibility factors, and the job titles and ages of everyone selected and everyone in the unit who was not. They exist so you can judge whether age drove the selections — and they are sometimes the first visible evidence that a “restructuring” fell disproportionately on older workers. Have them studied before you sign.

Bottom Line

Congress decided that workers over 40 get real time, real disclosures, and a real second chance before giving up age claims — and courts enforce the checklist literally. Use the statutory period for its purpose, read the group disclosures like the evidence they are, and remember that a defective waiver protects you even after the check clears.

Over 40 and Facing a Severance Agreement?

Federal law provides important protections for employees age 40 and older when waiving age discrimination claims. Wilkenfeld Law Office helps employees in DC and Maryland review severance agreements, understand their OWBPA rights, and evaluate their options before signing.
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Or call 301.245.3035 · Intake@WilkenfeldLO.com

This article provides general information and is not legal advice. Contacting us does not create an attorney-client relationship.
Reviewed by Ari Wilkenfeld, Esq. (DC Bar No. 461063; MD Bar No. 9806240300). Ari has over 27 years of experience litigating in federal and state courts, and before the U.S. Equal Employment Opportunity Commission (EEOC), the U.S. Merit Systems Protection Board (MSPB), and various arbitration panels. Ari has been recognized by Esquire Magazine as “a famously determined Civil Rights lawyer” and by the New York Post as “a high powered DC Lawyer.” Last updated: November 1, 2026.
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