Laid Off at 40 or Over? Ask for the Job Titles and Ages

If you are 40 or older and your employer asks you to sign away age-discrimination claims as part of a group layoff, federal law makes it hand you a written list first. That list names the group the employer picked from, the job titles and ages of everyone chosen, and the ages of everyone in the same unit who was not. Get it before you sign. It is often the clearest evidence of whether age drove the decision.

At a glance

• The list comes from the Older Workers Benefit Protection Act, at 29 U.S.C. section 626(f)(1)(H). It attaches only where a waiver is requested in connection with a group termination or exit incentive program.
• It must arrive at the start of your consideration window, so it is meant to inform your decision rather than explain it afterwards.
• It must give each person's actual age. The regulation says age bands such as "20-30" do not satisfy the requirement.
• It must cover everyone in the decisional unit, including the people who kept their jobs.
• A group program means the employer offered extra money for a waiver to two or more employees. One negotiated exit is not a program, and no list is owed.
• If the list is missing or wrong, that is grounds to challenge the waiver of your federal age claims, and the employer carries the burden of proving the waiver was knowing and voluntary. The outcome is not automatic, and it is worth reading the section below on what a challenge does and does not win.
• You do not have to give the money back before challenging the release. The regulation says retention is not ratification.
• California adds its own layer: the employer must tell you that you have a right to consult a lawyer, and give you at least five business days to do it.

What people assume, and what California law says

What is this list, and when should you get it?

The Older Workers Benefit Protection Act sets out what an employer has to do before a worker aged 40 or over can validly give up an age-discrimination claim. Most of its conditions are about the document you sign. One is about information the employer has to hand over.

Section 626(f)(1)(H) applies where "a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees." In that case the employer, "at the commencement of the period specified in subparagraph (F)," has to inform you in writing, in a manner calculated to be understood by the average person eligible to take part, of two things: the class, unit or group covered by the program, its eligibility factors and its time limits; and "the job titles and ages of all individuals eligible or selected for the program, and the ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the program."

Read the timing again, because it is the part employers get wrong. The list is due at the start of the window you have to think it over, not at the end and not on request.

You are allowed to sign early and give up the rest of the 21 or 45 days. The regulation permits it, so long as the decision is knowing and voluntary and the employer did not induce it through fraud, misrepresentation, a threat to pull or change the offer, or by offering better terms to people who signed early. The seven-day revocation period is different. It runs in full from the day you sign, and neither side can shorten it.

One more timing rule is worth knowing. The consideration window runs from the employer's final offer, and a material change to that offer restarts it. Two cautions come with that. The regulation does not define what makes a change material, and it lets the parties agree that changes do not restart the clock at all.

What exactly has to be on the list?

This is where a defective disclosure usually shows itself.

The regulation is explicit about why any of this is owed. Its stated purpose is "to provide an employee with enough information regarding the program to allow the employee to make an informed choice whether or not to sign a waiver agreement."

What is a decisional unit?

This term decides how much of the workforce you get to see, and it is not in the statute. It comes from the regulation, which defines it as "that portion of the employer's organizational structure from which the employer chose the persons who would be offered consideration for the signing of a waiver and those who would not be offered consideration for the signing of a waiver."

In plain terms: the pool the employer actually picked from. A single-site layoff usually makes that site the unit. A cut confined to one department usually makes that department the unit.

The regulation closes the obvious loophole. Where the people let go were chosen from a subset of the unit, the employer "must still disclose information for the entire population of the decisional unit." Its own example is a ten percent cut in an accounting department taken from the bottom third by performance, where the employer still has to disclose everyone in the accounting department, including the highest rated.

That matters because a unit drawn too narrowly is the quiet way a disclosure becomes useless. The regulation addresses this at the level of facilities: where an employer compares employees across several sites before choosing one, the unit widens to take in everyone who was considered. The same logic is worth raising where the comparison happened between departments, though the regulation does not spell that case out.

Do you actually get a list, or was yours an individual deal?

Only a group program triggers the disclosure, so this is the first question to answer.

The regulation says a program exists where an employer offers extra money for a waiver "to two or more employees," and that an involuntary termination program is typically a standardized formula or package available to two or more people. It adds that the terms of such programs generally are not open to negotiation.

So the practical test is not what the employer calls it. Ask whether anyone else got the same offer on the same terms at the same time, and whether the number was presented as fixed. If it was, you are probably looking at a program, and the 45 days and the list both apply. If your exit was genuinely negotiated for you alone, it sits on the individual track, with 21 days and no list.

How do you read the list for an age pattern?

Work through it in this order.

• Define the unit as the employer drew it. Note who is in the disclosure and who is missing. A department you would have expected to see is worth asking about.
• Split it by age. Count how many people aged 40 and over were in the unit, and how many of those were selected. Do the same for everyone under 40.
• Compare the two selection rates. A materially higher rate among the older group inside the same unit is the pattern the disclosure exists to reveal.
• Check the job titles against the grades. Where several grades sit under one title and the list does not break them out, the comparison it appears to offer may not be a real one.
• Look at how people were picked. Government Code section 12941 records the Legislature's intent that "the use of salary as the basis for differentiating between employees when terminating employment may be found to constitute age discrimination if use of that criterion adversely impacts older workers as a group," and that the disparate impact theory of proof may be used in age claims. A selection rule that looks neutral can still be the point.
• Look at who replaced the work. A role eliminated and then refilled by someone younger belongs alongside the numbers.
• Keep the paperwork. The list, the agreement, the offer, and the dates on each. Access to internal systems usually ends the day employment does.

None of this proves a case by itself, and the arithmetic in a small unit can turn on one or two people. It is the starting point a lawyer works from, and it is far more useful than memory.

Ready to talk it through? If a list has landed on your kitchen table with a deadline on it, a short conversation before the deadline is worth more than a long one after.

What happens if the list is missing or wrong?

Section 626(f)(1) says an individual "may not waive any right or claim under this chapter unless the waiver is knowing and voluntary," and that a waiver cannot be considered knowing and voluntary unless, at a minimum, the listed conditions are met. The disclosure is one of those conditions, so a group waiver that skips it has not met the standard.

Then comes the part that surprises people. The regulation puts the burden on the employer: "the party asserting the validity of a waiver shall have the burden of proving in a court of competent jurisdiction that a waiver was knowing and voluntary."

Four limits are worth stating plainly, because the rest of the internet tends to skip them.

Whether the list was wrong is itself a legal question. Employers have won these fights by showing that what the worker thought was missing was never required in the first place. A list that looks incomplete to you may be exactly what the statute asked for.

Not every error undoes a release. Federal appeal courts have held the statute's terms imprecise enough that a minor slip should not automatically void a waiver. In Raczak v. Ameritech Corp. (6th Cir. 1997) 103 F.3d 1257, the court reversed a decision voiding waivers over how the employer labeled the job data, warning that "a rigid and mechanical interpretation of that provision is inappropriate" and that holding an employer strictly to account for what might be a technical violation "would elevate form over substance." A district court applied the same reasoning in Romero v. Allstate Insurance (E.D. Pa. 2014) 1 F.Supp.3d 319, holding that a gap in the employer's disclosure was too small to invalidate the release on that ground, while still refusing to declare the release valid and sending that question on to trial on other grounds.

We are not aware of a published decision from the appeal court that governs California squarely deciding the question. As of September 2026, a California worker making this argument is in territory the Ninth Circuit does not appear to have settled.

Even a successful challenge is narrower than it sounds. It frees your federal age claim. The same signed agreement may still bar your claims under California's own Fair Employment and Housing Act and your contract claims, and in California the state claim is often the more valuable one. A defect also does not decide whether age discrimination happened. It decides whether you are still free to argue it.

None of that makes the list unimportant. It makes it the start of a conversation with a lawyer rather than a conclusion you can reach at the kitchen table.

Can you keep the severance and still challenge the release?

For an age claim, yes.

The law calls the severance money you were paid the consideration, and calls keeping it while accepting the deal ratification. The regulation says a person alleging that a waiver was not knowing and voluntary "is not required to tender back the consideration given for that agreement before filing either a lawsuit or a charge of discrimination." It goes further: "Retention of consideration does not foreclose a challenge to any waiver agreement, covenant not to sue, or other equivalent arrangement; nor does the retention constitute the ratification" of it. In plain terms, keeping the money does not sign you up to the deal.

Employers cannot contract around this. No ADEA waiver "may impose any condition precedent, any penalty, or any other limitation adversely affecting any individual's right to challenge the agreement," and the regulation names tender-back clauses as an example.

The Supreme Court reached the same result in 1998 in Oubre v. Entergy Operations, Inc., 522 U.S. 422. Holding that a release which did not comply with the Act could not bar the employee's age claim, the Court said that her "mere retention of moneys" was not a ratification, "since the retention did not comply with the OWBPA any more than the original release did."

There is a balancing rule at the other end. If you later recover, a court may reduce the award by what you were already paid, and the regulation caps that reduction at the lower of the amount recovered or the consideration received.

What does California add on top?

Three things, and they apply whatever the federal position is.

A release does not reach unknown claims unless it says so. Civil Code section 1542 provides that "a general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement." This is why separation agreements carry an express waiver of that section. Our guide to the clauses in a severance release goes through the rest of them.

You cannot be silenced about unlawful conduct. Government Code section 12964.5(b) makes it an unlawful employment practice for an employer to include in a separation agreement "any provision that prohibits the disclosure of information about unlawful acts in the workplace," and any provision that does is "against public policy and shall be unenforceable." Where an agreement restricts what you can say about workplace conditions, it has to carry language telling you that nothing in it prevents you discussing unlawful acts such as harassment or discrimination. The section does not stop an employer keeping the severance amount itself confidential, and it does not bar a general release.

You get your own time to take advice. The same section requires an employer offering a separation agreement to notify you that you have a right to consult a lawyer, and to give you "a reasonable time period of not less than five business days in which to do so." The federal requirement that you be advised in writing to consult a lawyer is a separate rule, in 29 U.S.C. section 626(f)(1)(E). As with the federal window, you may sign earlier, provided the choice is knowing, voluntary and uncoerced.

How long do you have to file in California?

Five clocks, and they run at very different speeds.

Seven days to revoke. From the day you sign, and it cannot be shortened.

A charge with the federal agency. The ordinary deadline to bring an age charge to the Equal Employment Opportunity Commission is 180 days from the discriminatory act, extended to 300 days where a state has its own agency enforcing an age-discrimination law. California has one, the Civil Rights Department (CRD) (formerly DFEH). Read the extension carefully. Section 626(d)(1)(B) gives you 300 days, or 30 days after you receive notice that the state has ended its own proceedings, whichever comes first, so a state closure can cut the federal window short.

A complaint with the CRD. Government Code section 12960 gives three years from the date the unlawful practice occurred for a complaint under California's own fair-employment law.

Ninety days to sue after a federal dismissal notice. Of the two deadlines here for actually filing suit, this is much the shorter, and it is the easiest to miss. If the Equal Employment Opportunity Commission dismisses your charge or otherwise ends its proceedings, 29 U.S.C. section 626(e) gives you 90 days from receiving that notice to bring the federal age case. That clock is separate from the California one, and it is the one that governs a federal age claim.

One year to sue after a California right-to-sue notice. Government Code section 12965 provides that the notice must state you may bring a civil action "within one year from the date of that notice." This is the state clock. Do not read it as covering the federal claim.

Deadlines in this area can run from earlier events than people expect, and a signed release sitting in the background changes what is worth doing first. If a date has already slipped, that is a reason to get advice quickly rather than a reason to stop.

Frequently asked questions

What is the OWBPA disclosure in a group layoff?

It is the written information an employer must give a worker aged 40 or over when it asks for a waiver of age claims in connection with a group termination or exit incentive program. Under 29 U.S.C. section 626(f)(1)(H) it has to state the class, unit or group covered, the eligibility factors and the time limits, plus the job titles and ages of everyone eligible or selected and the ages of everyone in the same job classification or organizational unit who was not.

When does the employer have to give me the list?

At the start of the consideration period, which for a group program is at least 45 days. The statute ties the disclosure to the commencement of that period, so a list produced after you have decided, or only once you ask, has not met the requirement.

Can the ages be given as a range?

No. The regulation states that information on ages should be broken down by the age of each person eligible or selected and each person not selected, and that age bands broader than one year, such as "age 20-30," do not satisfy the requirement.

Does the list have to include people who kept their jobs?

Yes. The disclosure covers the ages of everyone in the same job classification or organizational unit who was not selected. Where the people let go came from a subset of the decisional unit, the regulation says the employer must still disclose information for the entire population of that unit.

What happens if my employer never gave me the list?

The waiver of your age claims may not be valid, because section 626(f)(1) allows a waiver only where the listed conditions are met at a minimum. If it comes to a dispute, the employer carries the burden of proving the waiver was knowing and voluntary. It does not automatically follow that you were discriminated against; it means you may still be free to bring the federal age claim. Note the limit: the same agreement can still bar your Fair Employment and Housing Act and contract claims, which in California are often the more valuable ones. That is a reason to have the agreement read, not a reason to leave it.

Do I have to return the severance before I can sue for age discrimination?

No. The regulation says you are not required to tender back the money before filing a lawsuit or a charge, that retaining it does not foreclose a challenge, and that no waiver may impose tender-back as a condition. The Supreme Court held the same in Oubre v. Entergy Operations, Inc., 522 U.S. 422 (1998). A court may later offset what you were paid against what you recover.

I was the only person laid off. Do I get a list?

Probably not. The disclosure attaches to a group termination or exit incentive program, and the regulation describes a program as extra consideration offered for a waiver to two or more employees. A genuinely individual exit sits on the 21-day track with no disclosure. Whether yours was individual turns on what other people were offered, not on what the employer called it.

How long do I have to sign a severance agreement in California if I am over 40?

At least 45 days to consider a group offer, or at least 21 days for an individual one, then 7 days to revoke after signing. Separately, California requires the employer to notify you that you may consult a lawyer and to allow at least five business days to do so. You may sign before those periods end, provided the decision is knowing, voluntary and not induced by pressure.

The Law Offices of Jonathan J. Delshad is a Los Angeles based employment law firm representing employees across California in wrongful termination, discrimination, retaliation, harassment, and wage and hour matters. Representing employees is the core of the firm's practice. Mr. Delshad serves as Editor-in-Chief of the California Wrongful Termination Law Review and trained at Latham & Watkins. Recognition includes Super Lawyers (2022 to 2027), Best Lawyers (since 2017), and an Avvo 10.0 "Superb" rating. Reviewed for California employment law accuracy. Last updated: September 15, 2026.

Attorney advertising. This article is educational only and is not legal advice. Reading it does not create an attorney-client relationship, which exists only under a signed engagement agreement. Every case is different, and outcomes depend on the specific facts. Deadlines can run early, so consult a lawyer promptly about your situation.