THE IMPACT OF OWBPAS LIST REQUIREMENTS ON THE ENFORCEABILITY OF ADEA WAIVERS

In the fall of 1990, Congress enacted the Older Workers Benefit Protec tion Act of 1990 (OWBPA) to remedy perceived unfair, discriminatory tr eatment in providing welfare benefits to older workers. OWBPA also reg ulates the use of agreements to waive claims under the Age Discriminat ion in Employment Act of 1967 (ADEA). The waiver provisions impose min imum, objective requirements designed to ensure that such waivers are ''knowing and voluntary.'' In addition to the standard requirements, O WBPA imposes special conditions when employees age 40 or older are ask ed to sign waivers as a condition to receipt of severance or special e arly retirement benefits offered during a ''group'' exit incentive (vo luntary) or involuntary force reduction program. Employees asked to si gn ADEA waivers as part of a group program must be given 45 days to co nsider the waiver and must be issued lists showing the ages and job ti tles of persons eligible and ineligible for the benefits provided. Cou rts have uniformly invalidated waivers obtained in violation of these requirements, but few cases address the substance of the list requirem ents. This article discusses the comparatively limited legislative and judicial authority pertinent to the list requirements and proposes se veral guidelines for preparing lists that satisfy OWBPA standards.