What does the list of ages in my layoff packet mean?

Why you got it

The Older Workers Benefit Protection Act sets minimum requirements before a release of age discrimination claims counts as knowing and voluntary. For an "exit incentive or other employment termination program offered to a group or class of employees," the employer must give you, in writing and in plain language, when your review period starts (29 U.S.C. § 626(f)(1)(H)):

• Which group, unit, or class the program covers, the factors used to decide who was included, and any time limits.
• The job titles and ages of everyone eligible or selected.
• The ages of everyone in the same job classification or organizational unit who was not eligible or selected.

Under the EEOC's rule, a "program" exists when an employer offers extra pay for signing a waiver to two or more employees as part of a layoff or exit incentive, usually as a standard package that isn't negotiated person by person (29 C.F.R. § 1625.22(f)(1)(iii)).

What the list has to look like

The EEOC's rule fills in the details (29 C.F.R. § 1625.22(f)(4)):

• Exact ages, not ranges. Bands like "20 to 30" don't satisfy the requirement.
• Broken down by grade level or subcategory when the layoff cuts across established levels within a job title.
• Voluntary and involuntary separations kept distinct if both appear.
• The whole decisional unit, even if people were picked from only part of it. If an employer cut from the bottom third of performers in a department, it still has to list everyone in that department.
• Cumulative in rolling layoffs. Later waves must cover everyone in the unit when the program began and everyone let go so far.

What is a "decisional unit"?

It is the part of the company the employer chose from when it decided who would be offered severance and who would not. It might be a facility, a division, a department, everyone reporting to one executive, or everyone in a job category. It is usually no broader than a single facility, but if the employer compared several facilities before picking one, all of them are in the unit (29 C.F.R. § 1625.22(f)(3)). A list that covers only your team, when the decision was really made across a larger group, can be a problem.

How to read it

Start by finding your own row. Then compare the ages of the people who were selected with the ages of the people who were kept, within the same job titles. Note who was chosen from roles like yours, and whether the employer's stated selection criteria explain the pattern.

A lopsided list does not prove discrimination by itself, and a balanced one does not rule it out. It is one piece of evidence a lawyer weighs with everything else, including what was said before the layoff and how the criteria were applied.

Your time limits

In a group program you get at least 45 days to consider the agreement and 7 days after signing to revoke, and the agreement doesn't take effect until those 7 days pass (29 U.S.C. § 626(f)(1)(F)-(G)). The 45 days run from the employer's final offer, a material change to the offer restarts them, and the revocation period cannot be shortened (29 C.F.R. § 1625.22(e)(4)-(5)). Our severance deadline calculator works out the dates.

If something is missing or wrong

The employer bears the burden of proving that an age waiver met every requirement (29 U.S.C. § 626(f)(3)). A release also can't stop you from filing a charge with the EEOC (29 U.S.C. § 626(f)(4)). And under the EEOC's rule you don't have to return the severance before challenging the waiver. If you win, a court may reduce your recovery by no more than what you were paid for signing (29 C.F.R. § 1625.23).

What to do now

1. Keep the list with the agreement, and note the date you received the final version.
2. Write down the names of people in your unit who were let go and kept, if you know them, and anything said about age, "fresh perspectives," or retirement.
3. Have the packet reviewed before your 45 days run out.

Related: severance review, employment discrimination.

This article is for informational purposes only. It may not be fully correct, complete, or current for your situation, and it is not legal advice.

Questions people ask

Why did my layoff packet include a list of ages and job titles?

Federal law requires it when an employer asks people 40 or older to give up age discrimination claims as part of a group layoff or exit program. The list has to show the job titles and ages of everyone selected and the ages of everyone in the same unit who was not (29 U.S.C. § 626(f)(1)(H)).

What if my packet didn't include the list?

If the layoff was a group program and the list was missing or incomplete, your waiver of age claims may not be valid. The employer has the burden of proving that a waiver met the requirements (29 U.S.C. § 626(f)(3)). Have a lawyer look at it.

Do I have to give the severance back to challenge the waiver?

No. Under the EEOC's rule, you do not have to return the severance before filing an age discrimination charge or lawsuit that challenges the waiver, and keeping it does not ratify the waiver. If you win, a court may reduce your award by up to the amount you received for signing (29 C.F.R. § 1625.23).

Does the list prove age discrimination?

No. A pattern can raise questions, but numbers alone rarely prove why someone was chosen. A lawyer will look at the pattern alongside your role, the stated selection criteria, and what was said and done before the layoff.