Guide for workers
Severance: what federal law requires, and what it doesn’t
Severance isn’t required by federal law. When it comes with a release of legal claims, federal law sets minimum terms for workers 40 and older.
General information, not legal advice. Federal rules are summarized here with their sources; your state may give you more protection, and your situation may differ.
Is severance required?
No. The federal Fair Labor Standards Act does not require severance pay. Severance is a matter of agreement between an employer and an employee, or the employee’s representative such as a union. (U.S. Department of Labor)
If an employer-sponsored severance plan exists and benefits weren’t paid under it, the Labor Department’s Employee Benefits Security Administration (EBSA) may be able to assist. (U.S. Department of Labor)
Releases of age-discrimination claims (workers 40 and older)
Severance offers often come with an agreement to give up legal claims. Under the Older Workers Benefit Protection Act, a waiver of federal age-discrimination claims is valid only if, at a minimum, it meets every one of these conditions (29 U.S.C. § 626(f)(1)):
- It is written in a manner the worker, or the average eligible worker, can understand.
- It refers specifically to rights or claims under the federal age-discrimination law.
- It does not waive claims that arise after it is signed.
- It is given in exchange for something of value beyond what the worker is already entitled to.
- It advises the worker in writing to consult an attorney before signing.
- It gives the worker at least 21 days to consider it, or at least 45 days when the offer is part of a program for a group of employees.
- It allows the worker to revoke it for at least 7 days after signing, and does not take effect until that period ends.
- For a group program, it comes with written information about who is covered and the job titles and ages of those selected and not selected.
The EEOC adds that the 21-day period runs from the employer’s final offer, restarts if the offer changes materially, and that the 7-day revocation period cannot be changed or waived. (EEOC)
Who this covers: workers 40 and older, employers with 20 or more employees (the federal age-discrimination law’s definition of employer), and waivers of federal age-discrimination claims only. (29 U.S.C. § 630(b)) Releases of other claims, and workers under 40, are governed by other federal and state law, which these rules don’t describe.
Sources
- Severance Pay, U.S. Department of Labor
- 29 U.S. Code § 626(f): Waiver (Older Workers Benefit Protection Act), Legal Information Institute, Cornell Law School
- 29 U.S. Code § 630(b): Definition of employer (Age Discrimination in Employment Act), Legal Information Institute, Cornell Law School
- Q&A: Understanding Waivers of Discrimination Claims in Employee Severance Agreements, U.S. Equal Employment Opportunity Commission