FACT OR FICTION: Complying with ADEA disclosure requirements for a layoff means listing foreign non-U.S. workers too

It’s time for another edition of “Fact or Fiction” a/k/a “Quick Answers to Quick Questions” a/k/a QATQQ f/k/a “I don’t feel like writing a long blog post.”

Fact or Fiction:  Employees who are not U.S. citizens and work outside of the United States for American employers (or foreign firms controlled by American employers) must be included in disclosure requirements according to provisions of the Older Workers Benefit Protection Act (OWBPA), which amended the Age Discrimination in Employment Act of 1967 (ADEA)?

Before I answer this wonkiest of wonky’s, let’s take a step back.

When your business provides an exit incentive for a group of workers or other termination program offered to a group of employees, the ADEA/OWBPA requires a knowing and voluntary waiver to get a full release of age discrimination claims. Among other things, the employer must provide the employees with the following information, in writing and plain, easy-to-understand English:

  1. 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
  2. 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.

Here is an example.

But, if you have non-U.S. citizen employees working overseas, are they part of the same class, unit, or group?

According to this recent EEOC Opinion letter, the answer is no. That’s because “non-U.S. citizen employees of American employers working outside the United States are not required to be included as part of a decisional unit because they do not meet the definition of an ’employee’ under the ADEA.” The EEOC fretted that “by including non-covered employees in the disclosures, an employer might present a misleading picture of the broader exit incentive or termination program or, in fact, mask potentially unlawful discrimination.”

So, there you have it. The answer to today’s question is FICTION.

For more information on ADEA/OWBPA waivers and releases, check out this EEOC resource. Ideally, when considering a layoff of two or more employees concurrently or in close temporal proximity, nothing replaces good advice from outside employment counsel.

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