Two standards sit in this unit: the OWBPA numbers that make an age-claim release enforceable, and the ADA's definition of undue hardship. Both are tested as precise language, not paraphrase.
OWBPA: 21 against 45, and 7 to revoke
- Individual waiver, offered outside a group program: at least 21 days to consider the agreement.
- Group waiver, offered in connection with an exit incentive or other employment termination program offered to a group or class: at least 45 days to consider.
- Either way: at least 7 days after signing to revoke, and the agreement is not effective or enforceable until that revocation period expires.
Swapping 21 and 45 is a listed common error, and 7 is the revocation period, never the consideration period. There is no 60-day OWBPA period.
The group disclosure
A group waiver also requires written disclosure of:
- the covered group or class and the eligibility factors,
- any time limits applicable to the program,
- the job titles and ages of all individuals eligible or selected, and
- the ages of individuals in the same job classification or organizational unit not selected.
Job titles and ages, not names and salaries.
Always required in writing
The individual must be advised in writing to consult with an attorney before executing the agreement. Waiving the right to file a charge is not required language and conflicts with the charge-filing right. Ordinary contract boilerplate is not an OWBPA validity element.
Apply it: 22 positions eliminated across two departments is a group program. A packet giving 21 days, 7 to revoke and attorney advice is still defective - extend to 45 days and add the written disclosure.
ADA undue hardship
Undue hardship means an action requiring significant difficulty or expense when considered in relation to factors such as the business's size, financial resources, and the nature and structure of its operation. There is no bright-line percentage, and coworker perception is not a factor. For a $3,800 request at a 900-person hospital system, the test runs against the enterprise's resources, not one manager's discretionary budget.