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An employee’s release of ADEA claims is not knowing and voluntary unless, “at minimum,” it satisfies the specific requirements enumerated in OWBPA. Depending on how termination decisions are made, a single RIF may affect multiple decisional units, each requiring its own set of disclosures.

Those requirements are “strict and unqualified,” and a waiver that fails to meet any of the requirements is “ineffective as a matter of law.” See Thomforde v. Employers should take care to examine their decision-making processes when crafting OWBPA disclosures.

In an effort to comply with the regulations, most employers have drafted their disclosures to state that the employees “eligible” for a “termination program” are those who worked in the affected decisional unit and were selected for termination. As we continue to monitor the developing case law, we recommend companies using waivers in connection with group terminations consider including in their OWBPA disclosures a statement identifying the general criteria used to select employees for termination, especially for group terminations within the Eighth Circuit.

Interpreted “Eligibility Factors” To Mean Selection Criteria In , the District of Minnesota joins one other district court which has interpreted the term "eligibility factors" under the OWBPA to mean the factors by which employees were selected for termination. As one of the few cases to consider the issue, Pagliolo will likely have persuasive effect, even outside of the Eighth Circuit.

However, there was no evidence that the Keoghs were aware at that time of the purchasers' intention to apply for permission to erect two houses on the site.