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Disclaimer:
The Treatise is based upon federal appellate court decisions from 1996
to 2008. We are currently in the process of updating the Treatise. Until
that update is complete, it is possible that certain cases cited in the
Treatise may no longer represent current law.
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8.200 Release, settlement and severance agreements
8.220 Validity of settlement agreements
8.223 OWBPA
8.223.30 Older Workers Benefit Protection Act - Knowing and voluntary
2d Circuit
In
Tung v. Texaco, Inc., 150 F.3d 206 (2d Cir. 1998),
the court distinguished between what constitutes a knowing and voluntary waiver
under Title VII as compared with the ADEA and the OWBPA:
We agree that, under the totality-of-the-circumstances
analysis, Tung's waiver of his right to sue under Title VII was knowing and
voluntary.
However, a purported waiver of ADEA claims is also
governed by the Older Workers Benefits Protection Act, 29 U.S.C. § 626(f).
The OWBPA provides that "[a]n individual may not waive any right or claim
under [the ADEA] unless the waiver is knowing and voluntary," and that "a
waiver may not be considered knowing and voluntary unless at a minimum" it
conforms to certain specific statutory requirements. 29 U.S.C. § 626(f)(1).
Thus, an employee may not waive an ADEA claim unless the employer complies
with the specific duties imposed upon it by the statute. See
Oubre
v. Entergy Operations, Inc., 118 S. Ct. 838, 841 (1998).
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