Under the Older Workers Benefit Protection Act, the 21-day consideration period applies when a single employee aged 40 or older is offered severance in exchange for waiving age discrimination claims, and the 45-day consideration period applies when the offer is part of a group termination or exit-incentive program. The longer window carries an additional condition the shorter one does not: the employer must hand over written data about who was and wasn’t selected, and until that data arrives, the 45-day clock has not started.
When the 21-Day Period Applies
The 21-day window governs individual terminations. If your employer is letting you go on your own, not as part of a broader layoff, and asks you to sign a release covering claims under the Age Discrimination in Employment Act, you get at least 21 days to review the offer before signing.129 U.S.C. § 626(f)(1)
The clock starts when the employer delivers the final written offer. Verbal conversations leading up to that delivery do not count, and the employer cannot shorten the window by imposing an earlier internal deadline. You are allowed to sign before day 21 if you choose to, but the choice has to be real. If the employer applies pressure that turns the 21 days into a formality, a court can later find the waiver was not knowing and voluntary.
When the 45-Day Period Applies
The moment the termination is part of a group layoff or an exit-incentive program affecting more than one employee, the minimum consideration period becomes 45 days.229 U.S.C. § 626(f)(1)(F)(ii) The EEOC reads “program” broadly, covering voluntary early retirement packages, reductions in force, and other group exit incentives.
The 45-day period comes with a disclosure requirement that has no counterpart in the 21-day individual context. The employer must give every affected worker a written notice listing:
- The job titles and ages of all individuals selected for the program.
- The ages of all individuals in the same job classification or organizational unit who were not selected.
That data exists so employees and their attorneys can look for a pattern: were older workers disproportionately chosen? Without the disclosures, the 45-day clock does not legally begin to run. Vague or incomplete demographic information is treated the same as none at all. An employer who provides the release without the required data has not started the review period, no matter what date sits at the top of the document.
The Trigger Between the Two Periods
The dividing line is whether the termination is individual or part of a program. One departing employee, standing alone, gets 21 days. Two or more employees terminated as part of the same reduction, incentive, or exit program push the entire group into the 45-day track, with the demographic disclosures attached. Employers occasionally try to characterize a small group of terminations as a series of individual decisions to avoid the disclosure obligation; that characterization does not hold up if the terminations were selected under a common program.
The 7-Day Revocation Period After Either Window
Whichever consideration period applies, signing does not end the process. You get seven calendar days after signing to revoke the waiver.329 U.S.C. § 626(f)(1)(G) No reason is required; written notice to the employer is enough. The agreement does not become enforceable until the eighth day, which is why most employers hold the severance payment until then.
The revocation right cannot be waived. An agreement that tries to shorten or eliminate the seven days is defective on its face, and the defect is not cured by the employee agreeing to give the period up.
The Other Requirements That Run Alongside the Clock
Meeting the consideration period alone does not validate the waiver. The full statutory checklist has to be satisfied in the same document:
- The agreement is written in plain language the average person can understand.
- It specifically references rights or claims under the ADEA by name.
- It does not attempt to waive claims that arise after the signing date.
- It offers consideration beyond anything the employee is already owed.
- It advises the employee in writing to consult an attorney before signing.
- It provides the correct consideration period, 21 or 45 days.
- It provides the 7-day post-signing revocation period.
Miss any one of these, and the waiver is void for ADEA purposes. Six out of seven is not enough. The 21-day or 45-day window is the requirement that gets the most attention, but a compliant timeline attached to a defective release does not save the release.
What Happens If the Period Is Shortened or Mishandled
A waiver that fails the consideration-period rules, or any other OWBPA requirement, does not bar an ADEA lawsuit. The Supreme Court held in Oubre v. Entergy Operations that a non-compliant release is treated as if it never existed for purposes of age discrimination claims. The employer bears the entire burden of compliance; a company whose counsel drafted a flawed agreement absorbs the consequences.
The employee is not required to return the severance money before filing suit. The Court rejected the argument that keeping the payment while challenging the waiver was unfair, reasoning that a return-first rule would effectively block many older workers from ever getting into court to test the release.
One Boundary Worth Knowing
No severance agreement, compliant or not, can stop you from filing a charge with the Equal Employment Opportunity Commission or from participating in an EEOC investigation. That right sits outside anything the 21-day or 45-day period governs, and any agreement language attempting to restrict it is void on that point regardless of how the rest of the waiver is drafted.