OWBPA Guidelines for Hawaii Severance Agreements: Rules for Employees Over 40
Under federal law, if you are over 40 and offered severance in Hawaii, your employer must give you at least 21 days to consider the offer and 7 days to revoke your signature to legally waive your age discrimination claims.
When you are let go from your job in Hawaii, your employer might slide a severance agreement across the table. They offer you a few weeks of pay, but in exchange, you must sign a document releasing the company from all future lawsuits. If you are 40 years of age or older, you have massive federal protections before you sign that document. The Older Workers Benefit Protection Act (OWBPA) was designed specifically to stop employers from pressuring older workers into quickly signing away their right to sue for age discrimination.
Employers in Honolulu, Maui, and Hilo frequently make critical mistakes when drafting these severance agreements. If an agreement violates the strict guidelines of the OWBPA, the waiver of your age discrimination rights is completely invalid. This means you could potentially keep the severance money and still sue the company for age discrimination under the 29 U.S.C. § 621. Finding a specialized employment lawyer from our directory can help you review your severance package and ensure you are not being taken advantage of.
Step-by-Step OWBPA Review Process
The OWBPA, located at 29 U.S.C. § 626(f), lists very rigid, mechanical requirements. If your employer misses even one of these steps, the age discrimination waiver is void.
21-Day Consideration Periods
If you are terminated individually, the company cannot demand that you sign the severance agreement immediately. By law, they must give you at least 21 full days to take the document home, read it, and consult with an attorney. You can choose to sign it on day two or day twenty, but the employer cannot threaten to withdraw the offer just because you want to use your full 21 days to think about it.
7-Day Revocation Windows
Even after you sign the agreement and hand it back to HR, the deal is not final. The OWBPA guarantees you an absolute right to revoke (cancel) your signature for 7 days after signing. The agreement does not become legally binding, and the company usually will not pay you the severance money, until this 7-day window has completely expired.
Group Layoff Disclosures (45 days)
The rules change dramatically if you are laid off as part of a group or a corporate restructuring. If two or more employees are let go, your consideration period is extended from 21 days to 45 days. Furthermore, the employer must provide you with a written, detailed disclosure document. This document must list the exact job titles and ages of all individuals who were laid off and selected for the severance program, as well as the ages of all individuals in the same department who were not laid off. This allows you and your lawyer to look for mathematical patterns of age discrimination.
What Invalidates a Waiver of ADEA Claims?
An employer's mistakes can invalidate the age discrimination waiver, leaving them exposed to lawsuits. Common fatal errors include:
- No Written Advice to Hire a Lawyer: The agreement must explicitly advise you, in writing, to consult with an attorney before signing.
- Burying the ADEA Mention: The document must specifically refer to your rights or claims under the Age Discrimination in Employment Act. A general waiver of "all federal and state claims" is not enough.
- Waiving Future Rights: The agreement cannot ask you to waive rights or claims that may arise after the date the agreement is executed.
- Preventing EEOC Contact: The agreement cannot prohibit you from filing a charge with the Equal Employment Opportunity Commission, Honolulu using a Form 5, Federal, EEOC, Charge of Discrimination.
How Much Does Severance Review Cost?
Investing in a legal review of your severance agreement is one of the smartest financial decisions you can make.
- Flat-Fee Review: Many Hawaii employment attorneys charge a flat fee, typically ranging from $350 to $750, to read your agreement, explain your rights, and point out OWBPA violations.
- Negotiation Fees: If you want the lawyer to negotiate a higher severance payout based on potential age discrimination, they may charge an hourly rate ($250-$450) or take a contingency percentage of the additional money they secure for you.
How Long Does the Process Take?
The timeline is heavily dictated by the statute. You have 21 or 45 days to review the offer. If you hire a lawyer on day three, they will usually spend one to two weeks negotiating with your employer's legal department. Once a final agreement is signed, you must wait out the mandatory 7-day revocation period before the company will cut your severance check.
Frequently Asked Questions (FAQ)
If the waiver is invalid, can I still keep the severance money?
Under the OWBPA, if the waiver is deemed invalid and you sue for age discrimination, you generally do not have to return the severance money before filing the lawsuit, though it may be deducted from any final damages you win.
Do these rules apply if I am under 40?
No. The strict 21-day, 45-day, and 7-day rules of the OWBPA only protect workers who are exactly 40 years of age or older at the time of the severance offer.
Can the employer offer me more money to waive the 21-day period?
No. The consideration period is a strict federal requirement. While you can voluntarily sign early, the employer cannot offer you incentives or threaten you to speed up the process.
What happens if the employer forgets to list the ADEA by name?
If the ADEA is not specifically mentioned in the waiver clause, you have not legally waived your right to sue for federal age discrimination, regardless of what the rest of the contract says.
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