Citing “privacy” concerns, IBM has stopped disclosing Older Worker Benefit Protection Act (OWBPA) information identifying job titles and ages of those being separated and retained during recent layoffs, according to published reports by Bloomberg.
To get around the mandatory OWBPA disclosure requirements for the waiver of claims under the Age Discrimination in Employment Act (ADEA), which can reveal disproportionate impacts to older workers, IBM does not require the release of ADEA claims as part of its severance packages, but it does require that employees who accept the severance packages agree to try their age discrimination claims through binding arbitration, Bloomberg reports. No word of any legal challenges to this novel approach, but we expect that most employers would not like the idea of paying out severance, and then having to face arbitration claims – and added liability exposure – for age discrimination. Still, it may be an effective tactic to consider to shield information about the ages of affected employees in large reductions in force.
Michael Homans is a Labor & Employment attorney and Chair of the Litigation Department at Flaster Greenberg PC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.