Employees aged 40 and over must be given 45 days to consider and sign the agreement and seven days after signing to revoke it. Image: tomertu/Shutterstock.com
By: FEDweek StaffOPM has said that “out of an abundance of caution,” agencies should take several additional actions for employees age 40 and over to guard against claims of age discrimination in how they operate the “deferred resignation” program.
A memo on chcoc.gov represents the further guidance OPM promised earlier regarding the implications of the Age Discrimination in Employment Act and the Older Workers Benefit Protection Act on the program, under which employees may resign now with an effective date as late as September 30, with the promise of continued pay and benefits until separation.
While the program is government-wide, it excludes positions related to immigration enforcement and national security—leaving it up to agencies to decide which positions fall in those categories—and also gives agencies discretion to exclude other positions for mission reasons. That leaves the potential for claims that eligibility decisions were tainted by age discrimination, the guidance says. A legal challenge initially delayed the deadline for the program but on Wednesday, Feb 12 a federal judge allowed the program to proceed – although OPM has said it’s now closed.
The memo says that agencies should treat deferred resignation as a voluntary “exit incentive program” under those laws. That requires that in addition to the general waiver of appeal rights that employees must sign in the resignation agreement, employees aged 40 and over must be given 45 days to consider and sign the agreement and seven days after signing to revoke it; and must be advised of their right to consult with an attorney prior to signing.
Agencies further must disclose to such employees “any class, unit, or group of individuals covered by such program, any eligibility factors for such program, and any time limits applicable to such program” and “the job titles and ages of all individuals eligible or selected for the program, and the ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the program.”
The memo includes a template for the additional waiver language and a sample of how the required disclosure can be presented.
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