Lately, I’ve been talking with more employers about permanent reductions in force.

It’s not fun.

And it’s not something I thought we’d be talking about 3 months ago, and yet it’s not foreign to me either.

In fact, I spent several of my earliest posts here on this exact topic. 

As I talk with employers here who are offering severance agreements with their staff for the RIF, there are two provisions of the law  that I highlight for them that are different than normal agreements.

For the “typical” agreement, many employers are now familiar with the requirements of the OWBPA (the federal Older Workers Benefit Protection Act)  — that is that the person has 21 days to consider the agreement, 7 days to revoke, the right to consult with an attorney, etc.

But for any reduction in force (termed a “exit incentive program”) where a separation agreement is going to be used and where the employee is over the age of 40, there are two different provisions of that law that come into play.

First, the employee must be given 45 days to consider the agreement, up from the 21 days.  Easy enough to add.

Second, the employer must provide the employee with detailed information about the RIF in writing.  Specificially, the employer has to disclose:

  • The class, unit or group of individuals covered by the exit program.
  • The eligibility factors for the exit program.
  • The job titles and ages of all individuals eligible for or selected for the program.
  • And the titles and ages of all those who were not eligible or selected for the program in the in the same job classifications or organizational unit.

Notably, this list does not include employee’s names though some employers are understanably concerned about releasing such informaiton.  In such cases, employers can remind the employees that the lists are confidential.

There’s much more that needs to be considered by employers in a RIF. Seeking legal counsel early on to look at things like disparate impact etc. is important to ensuring that the RIF doesn’t create any additional liability concerns for the employer.