If you are 40 or older and your employer has just handed you a severance agreement, the most important thing I can tell you is this: do not sign it today. Federal law gives you at least 21 days to review any agreement that asks you to waive age discrimination claims, and seven more days after signing to change your mind. Those are legal requirements under the Older Workers Benefit Protection Act. A waiver that does not honor them is unenforceable as to your age discrimination claims, regardless of what the agreement says. I represent employees in New York City and Nassau County, and some of the most consequential mistakes I see employees make in severance situations happen in the first 48 hours.
The ADEA and OWBPA: What Federal Law Actually Protects
The Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., prohibits employers with 20 or more employees from discriminating against workers who are 40 or older on the basis of age. That includes hiring, firing, pay, job assignments, promotions, layoffs, training, and any other term or condition of employment. When an employer decides to let someone go and offers severance in exchange for a release of claims, the release becomes subject to a separate federal statute (the Older Workers Benefit Protection Act) which governs what an employer must do before an ADEA waiver is valid.
Under the OWBPA, a waiver of ADEA rights in a severance agreement is only enforceable if it meets seven specific requirements. The agreement must be written in plain language that can be clearly understood. It must specifically reference the Age Discrimination in Employment Act by name. A general release of "all claims" is not sufficient on its own to waive ADEA rights. It must advise the employee in writing to consult an attorney before signing. It must provide "consideration," meaning something of value beyond what the employee is already entitled to receive. It cannot waive claims that arise after the date of signing. It must give the employee at least 21 days to consider the agreement. And it must allow seven days after signing for the employee to revoke acceptance.
The 21-Day Review Period Is Not a Formality
Many employees feel pressure to sign quickly. Employers sometimes suggest, directly or indirectly, that the offer might not last or that others are moving forward. That pressure is worth understanding clearly: under the OWBPA, the 21-day period cannot be shortened by your employer, and taking less time does not eliminate your right to revoke within seven days of signing. An employee can choose to sign before 21 days are up, but that is the employee's choice to make, not something the employer can force.
The 21 days are there for a reason. Reviewing a severance agreement properly means more than reading the payment amount. It means understanding what claims you are giving up, whether any of those claims have real value, what the non-disparagement and confidentiality provisions actually require of you, and whether the consideration being offered is proportionate to what you are surrendering. An attorney can help you evaluate all of that within the window. In my experience, employees who use the full review period are better positioned to negotiate improved terms or, when appropriate, to make an informed decision not to sign at all.
The 7-Day Revocation Right
Even after you sign, you have seven days to revoke. This period is absolute. It cannot be waived in the agreement, and no provision in the severance contract can make it go away. The agreement does not become effective until this revocation period expires, which means the employer cannot legally process your severance payment before the seven days run. If you sign and then realize within that window that you want to consult an attorney, or that you have information suggesting age discrimination was a factor in your termination, you have the right to withdraw.
Revoking carries real consequences (you give back the severance) but the decision should be yours, made with clear information, not something that happens by default because you did not know the right existed. I always want employees to know about this window before they sign anything.
Group Layoffs Trigger Even Stronger Protections
If you were laid off as part of a group termination or an exit incentive program (meaning multiple employees were offered separation packages at the same time) the OWBPA imposes requirements that go significantly beyond what applies to individual terminations.
First, the review period extends from 21 days to 45 days. Second, the employer must provide written disclosures identifying the decisional unit from which employees were selected (the relevant class, job classification, department, or facility) along with the eligibility criteria used to determine who was included. Third, and critically, the employer must disclose the ages and job titles of every employee in the decisional unit who was selected for termination and every employee who was not. This age-and-title list is not a formality. It is the document that tells you whether the people kept in your unit skew significantly younger than the people let go. Courts and the EEOC use that data to evaluate whether a reduction in force was age-neutral in practice. If your employer conducted a group layoff but did not provide this list, or provided a list that covers only part of the relevant unit, the waiver may be defective.
Employers receive only one chance to comply with these requirements. A subsequent letter trying to patch missing information does not retroactively cure a deficient disclosure.
New York State and City Law Go Further
The ADEA is the federal floor, not the ceiling. New York State and New York City both provide additional protections that in many cases are more powerful than federal law.
The New York State Human Rights Law protects workers of any age, not just those 40 and older, from age-based discrimination and harassment. It applies to employers with four or more employees. The New York City Human Rights Law similarly protects workers of all ages and applies to employers with four or more employees, covering workplaces throughout the five boroughs. Courts interpret the NYCHRL under a more liberal standard than federal law, making it in many circumstances the strongest available protection for employees in New York City.
For Nassau County employees, the NYSHRL applies to your situation as well. While Nassau County's local human rights law may also offer protections, I focus primarily on the state and federal frameworks in practice. You can read more about how discrimination claims work in my practice on my Workplace Discrimination page.
How an Age Discrimination Claim Affects Your Severance Leverage
This is the question I am most often asked in practice, and the answer is direct: if facts suggest that age was a factor in your termination or in how you were treated before termination, those facts are relevant to the value of the release you are being asked to sign. A severance agreement is, at its core, a transaction. You are releasing claims, including potentially valuable ones, in exchange for money. If one of those claims is an age discrimination claim with meaningful evidence behind it, the release of that claim has value, and the consideration being offered should reflect that.
Common indicators that age may have been a factor include being replaced by a significantly younger employee, being selected for layoff while younger employees with comparable performance records were retained, comments about your age or retirement plans before or during your termination, being pushed out after a new younger manager arrived, or being given a performance improvement plan for the first time after years of clean reviews.
You should also know that signing a severance agreement, even a valid one, does not prevent you from filing a charge with the EEOC. An EEOC charge is not a lawsuit; it is an administrative filing that triggers the agency's investigation process, and employees cannot be required to forfeit that right as a condition of receiving severance. Employers also cannot require you to repay your severance as a condition of filing an EEOC charge. Those provisions, if included in a severance agreement, are themselves unenforceable under federal law.
In New York, as a deferral state, you generally have 300 days from the discriminatory act to file an ADEA charge with the EEOC. Claims under the NYSHRL and NYCHRL carry their own deadlines. These time limits run regardless of whether you are still in negotiations over your severance package, which is another reason why consulting an attorney during the 21-day window is important.
What to Do If You Are Over 40 and Facing Termination
Before signing anything, write down everything you can remember about how the termination decision was communicated to you, what reasons you were given, and any comments about age, retirement, or "fresh perspectives" that were made by anyone in management before or during the process. Note whether you know of younger employees who were retained in comparable roles. Save any performance reviews, emails, or other documents that may be relevant.
If you were part of a group layoff, ask your employer for the OWBPA disclosure list if it was not provided with your severance package. You are legally entitled to it before your 45-day window can even begin running.
Then use the review period - all of it, if you need it - to have the agreement evaluated before you sign. You can read more about severance agreements and negotiation on my Severance Negotiations page. If you would like to discuss your specific situation, contact me directly. I represent employees in New York City and Nassau County, and I do not represent employers in these disputes.
Frequently Asked Questions About Age Discrimination and Severance in New York
What is the ADEA and who does it protect in New York?
The ADEA prohibits employers with 20 or more employees from discriminating against workers 40 and older in any term of employment. In New York, the NYSHRL and NYCHRL extend age discrimination protections to workers of any age and apply to employers with as few as four employees, so even if federal law does not cover your employer, state and city law likely does.
Does my employer have to give me 21 days to review a severance agreement?
If you are 40 or older and the agreement waives age discrimination claims, yes. The Older Workers Benefit Protection Act requires your employer to provide at least 21 days to review before signing. For group layoffs or exit incentive programs involving multiple employees, the period extends to 45 days. The employer cannot shorten either period.
What happens if I sign the severance agreement before the 21 days are up?
You can choose to sign early, but the employer cannot pressure you to do so. Regardless of when you sign within the 21-day window, the 7-day revocation period still applies and the agreement does not become effective until it expires. Coercive conduct by the employer around the signing may itself be grounds to challenge the waiver's validity.
What is the 7-day revocation right and can I waive it?
After signing, you have seven days to revoke. This period is absolute. No agreement provision can eliminate it, and no severance payment can be processed until it expires. To revoke, do so in writing. Revoking means returning the severance and the release does not take effect. This right cannot be waived in advance.
I was laid off in a group reduction. Does that change my rights?
Yes. Group layoffs trigger a 45-day review period and require the employer to disclose the decisional unit, selection criteria, and the ages and job titles of everyone in that unit who was selected and not selected. That list reveals whether younger employees were kept while older ones were let go. An incomplete or missing disclosure may make the ADEA waiver unenforceable.
My employer has fewer than 20 employees. Am I protected against age discrimination?
Federal ADEA requires 20 or more employees, so it would not apply. However, the NYSHRL and NYCHRL both apply to employers with four or more employees and protect workers of any age. Most New York City and Nassau County employees not covered by the ADEA are still protected under state or city law, which in many respects provides stronger remedies.
Can I file an EEOC charge even after signing a severance agreement?
Yes. The right to file an EEOC charge cannot be waived in any severance agreement, and employers cannot require repayment of severance as a condition of filing one. Both provisions are unenforceable if included. In New York, you generally have 300 days from the discriminatory act to file an ADEA charge; state and city law claims carry their own deadlines.
How do I know if I have an age discrimination claim that affects my severance leverage?
Common indicators include being replaced by a substantially younger employee, being selected for layoff while younger peers were retained, comments about retirement before your termination, or a sudden negative shift in performance reviews after years of positive ones. Any of these may suggest age was a factor, which is worth evaluating before you sign a release.