University of Virginia School of Law
The theses of this Article shall be developed in the following manner. Part I shall explain how conditional age-based exit incentive windows can be used by employers to achieve indirectly what the ADEA clearly prohibits when accomplished directly: the removal from employment of a group of employees chosen, at least in part, on the basis of their age. This Part further explains how this removal is accomplished by effectively inducing employees to waive prospectively their future ADEA protection. Part II analyzes the treatment of age-based conditional exit incentives by the courts before the passage of the OWBPA, stressing that the courts' acceptance of these incentives as simple noncoercive offers and their use of a vague standard of "voluntariness" to judge the enforceability of employee acceptance of the offers ignores the reality that has been highlighted in Part I. Part III then returns to the OWBPA. It outlines the Act's treatment of exit incentives in general and draws conclusions about the meaning of this treatment for conditional age-based exit incentive programs in particular. These conclusions include the strong inference that Congress did not intend to authorize much stronger judicial regulation of these incentives than that given before the Betts decision. Last, Part IV presents a theory of how Congress best could regulate exit incentive windows to serve the antidiscrimination goals of the ADEA without denying employers the discretion to grant the retirement benefits that they deem their employees to deserve.
Michael C. Harper,
Age-Based Incentives, Coercion, and the Prospective Waiver of ADEA Rights: The Failure of the Older Workers' Benefit Protection Act
Virginia Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/1607