OWBPA: Effective Termination Date Before or After Revocation Period?

If a severance is part of a settlement arrangement that involves the OWBPA and its 7-day revocation period, be careful in determining the effective termination date and the implications of what might be called a suspended state of employment.  Here are some particulars to take into account: 

– Date of eligibility for certain benefits (e.g., unemployment, COBRA);

– Date when a former employer is obligated, under the agreement, to provide the DUA information consistent with the parties’ terms;

– Classification of the revocation period (interim?) and definition of corresponding employer/employee status and obligations (e.g., whether employee is expected to continue working;  if not, will the time be paid or unpaid if s/he revokes?);

– Alternative outcomes in the event the right to revoke is exercised or not (i.e., payroll, workers’ compensation implications);

– Overlap of employee medical leave and proscribed return-to-work date with revocation period and/or effective termination date, as well as effect on medical benefits; and

– Timing of issuance of final paycheck.

Most of these issues can be addressed by the payroll and HR departments by both employer and employee.  And for employers and attorneys, more likely than not, there’ll be just one learning curve in developing an approach that can be used in future matters.

About Maria Hanna Joseph

Maria Hanna Joseph is Principal of Joseph Mediation. Her 25 years of experience in employment law, include 16+ of work and mediating for the Massachusetts Commission Against Discrimination which through which she has gained valuable insight into the MCAD, its practices and decision making. This, as well as her experience in plaintiff and defense litigation, with private and public sector clients, international and local business concerns, and in issues from harassment and discrimination, to noncompetition agreements, business operation, transgender workplace matters, retaliation and many others, lend her valuable perspective for understanding and mediating an array of legal and personal issues. In terms of volume, Maria has served more than 2,000 cases. Maria's practice has been honed with study of mediation at Harvard Law School's Program of Instruction for Lawyers, negotiation at Harvard Law School's Program on Negotiation, and in the disciplines of Transformative Mediation and Family/Domestic Mediation, which are significant assets in managing the personal nature of employment disputes, and conflict in general. Attorneys and parties know Maria as candid, pragmatic and persevering in her commitment to help them achieve meaningful settlements while keeping sight of their most important interests. The insight and creativity afforded by her experience and training are realized in the resolutions that manifest. These qualities, along with her demeanor and the trust she engenders, have earned Maria a reputation for being able to manage highly tense and fraught situations and individuals, and settle a wide variety of disputes and tough cases.
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