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      Working Past Retirement Age

      Signing Before the Consideration Period Ends

      Employers present the periods as an administrative formality that a willing employee can simply waive, and employees, wanting the money and wanting the situation over, sign on the day. The periods are conditions of the release rather than courtesies, and nothing is gained by cutting them short.

      Working Past Retirement Age6 min readFederal lawSeverance and waivers

      People standing around tables in a conference room, facing a presenter who is out of the frame
      A conference room in use, with the presenter out of frame. — NPS Photo, Public domain, source.

      The rule in short

      A release of age claims must allow a minimum period for consideration before signature and a further period afterward in which the employee may revoke. The consideration period may be shortened by a genuinely voluntary decision in some circumstances; the revocation period may not be waived. Material changes to the agreement may restart the consideration period. Signing early produces no advantage, and the payment does not arrive any sooner in most arrangements.

      The offer is on the table, the situation is miserable, and the fastest way to end it appears to be a signature. Almost every element of that instinct is understandable and one part of it is simply wrong: signing early does not end anything sooner.

      What the periods are actually for

      Time to take advice. Which the document itself advises, and which cannot be done in an afternoon by somebody who has just been given the news.

      Time to understand the disclosure. Where a group program applies, on the material described in the disclosure a group exit requires.

      Time to reconsider. Which is what the revocation period specifically provides, after the pressure of the meeting has passed.

      A counterweight to the position. Since somebody who has just lost a job is not negotiating from a position of equality and the framework acknowledges it.

      And a condition of validity. Rather than a convention, which is what makes a compressed process a defect rather than merely poor practice.

      What can and cannot be shortened

      The consideration period, sometimes. By the employee's own genuinely voluntary choice, provided the employer has not induced or pressured the decision.

      Not by the employer offering less. Since presenting a shorter period as the terms of the offer is not the employee choosing anything.

      Not by making payment conditional on speed. Which is inducement, and which converts a voluntary early signature into something else entirely.

      The revocation period, never. It runs after signature and cannot be given up, whatever the agreement says about it.

      And material changes restart the clock. Which employers frequently overlook when terms are revised during a negotiation.

      PeriodWaivableEffect of signing early
      Consideration periodBy genuine choice onlyNo payment advantage
      Revocation periodNoNot applicable
      Extended group periodBy genuine choice onlyDisclosure goes unread
      Period after a material changeRestartsMay invalidate the process
      Employer-imposed shorter deadlineNot a valid periodSignals a defective process

      Why signing early achieves nothing

      Payment usually waits anyway. Since most arrangements do not pay until the revocation period has expired, so an early signature does not produce early money.

      The offer does not lapse. Within the statutory period, and an employer suggesting otherwise is doing something that undermines its own document.

      Advice becomes impossible. Which is the actual cost, since the review that would have identified any defect never happens.

      The disclosure goes unread. Along with the tables that contain the only genuinely new information in the pack.

      And any negotiation is forfeited. Since terms are more often improved during the period than after a signature has been given.

      An offer that expires before the statutory period has run is a signal

      Employers do this to create urgency, and it undermines their own document. The periods are conditions of an effective waiver of age claims, and an employer compressing them is either unaware of the requirements or indifferent to them. Either way, an employee facing that pressure has been told something useful about how carefully the rest of the process was conducted, and it is a reason to take advice rather than to hurry.

      Pressure, and what it signals

      Offers presented as expiring. Before the statutory period has run, which is both a signal and a potential defect in the release itself.

      Meetings arranged to produce signatures. Where a document is handed over and a pen provided, which is not consistent with a period for consideration.

      Suggestions that advice is unnecessary. Where the document itself advises taking it, which is an internal contradiction worth noticing.

      Discouragement of questions. Since a well-run process expects them and a compressed one treats them as obstruction.

      And a general urgency. Which usually reflects the employer's own timetable rather than anything about the employee's position.

      What to do instead

      Diary the two dates. The end of the consideration period and the end of the revocation period, before doing anything else with the pack.

      Read the disclosure. First, since it contains information not available anywhere else and bears directly on the questions in comments, policies and proof.

      Take advice inside the period. Which is what it was provided for, and which costs a fraction of what may be being released.

      Negotiate if there is anything to negotiate. Since the period is the window in which an employer is still willing to move, on the position in what makes a waiver binding.

      And sign at the end rather than the beginning. Because nothing is lost by waiting and the whole of the protection depends on it.

      The instinct to sign and be done with it is entirely understandable and it is the one thing in this process that costs something without gaining anything.

      Payment does not arrive sooner. Most arrangements pay after the revocation period regardless of when a signature was given, which removes the only practical argument for speed.

      The offer does not lapse either. An employer suggesting that it might, within the statutory period, is undermining the validity of its own release.

      The revocation period cannot be waived at all, which is worth knowing because employers occasionally present it as something an employee can agree to forgo.

      Material changes restart the consideration period, and this is regularly overlooked in negotiations where terms move and a revised document is signed the following day.

      The real cost of early signature is the advice that never happens and the disclosure that never gets read, both of which occasionally reveal that the release does not do what everybody assumed.

      Pressure is informative. A process run properly allows the periods, expects questions and is unbothered by a request for time; a process that does none of those has told somebody something.

      The two dates should be written down before anything else, because everything useful available in this situation happens between them.

      Negotiation, where there is anything to negotiate, also happens in that window rather than afterward, since a signed release removes any reason for an employer to move.

      And signing at the end of the period rather than the beginning costs precisely nothing, which is a rare thing to be able to say about any decision in this area.

      It is worth acknowledging why people sign anyway, since the reasons are entirely rational rather than careless. The situation is humiliating, the employer wants it concluded, and every day the document sits unsigned is a day of thinking about it. Ending that quickly has real value to somebody who has just been told their career is over.

      The answer is not to tell people to feel differently about it. It is to point out that the ending they are buying does not actually arrive sooner. The money comes when the revocation period expires either way, the employer is not going to reopen the discussion, and the only thing that changes is whether anybody looked at the document first.

      Two weeks of discomfort, in exchange for knowing whether the release does what it says, is a trade most people would make if anybody framed it that way for them.

      Points to carry away

      • Both periods are conditions of a valid release.
      • The revocation period cannot be waived.
      • Material changes may restart the consideration period.
      • Signing early does not usually accelerate payment.
      • Pressure to sign immediately is itself a warning sign.

      Questions readers ask

      Can the consideration period be shortened?

      The employee may in some circumstances decide to sign before it expires, provided the decision is genuinely their own and not the product of the employer inducing or pressuring them. What an employer cannot do is present a shorter period as the offer, or make the payment conditional on early signature. In practice the distinction is hard to police and easy to abuse, which is why an offer that appears to expire before the statutory period has run is a signal worth taking seriously rather than a deadline to be met.

      Can the revocation period be waived?

      No. It runs after signature, it exists so that somebody who has thought further, or taken advice, may withdraw, and it is not something an employee can give up by agreeing to. An agreement that purports to remove it, or that treats it as optional, is defective in a way that may affect the validity of the whole waiver of age claims. Payment is generally not made until it expires, which is another reason there is no practical advantage in signing early.

      What if the agreement changes during the period?

      Material changes generally restart the consideration period, which employers sometimes forget when they revise terms during a negotiation. Immaterial changes may not. This matters because an employee who negotiates an improvement and signs a revised agreement two days later may be signing within a period that has begun again, and the position should be clarified rather than assumed. Where an employer resists restarting it, that is itself informative about how carefully the process is being run.

      Sources

      1. 29 U.S.C. § 626 — Recordkeeping, investigation, and enforcementlaw.cornell.edu
      2. 29 U.S.C. § 623 — Prohibition of age discriminationlaw.cornell.edu
      3. Legal Information Institute — Waiverlaw.cornell.edu
      4. Legal Information Institute — Duresslaw.cornell.edu
      5. Legal Information Institute — Releaselaw.cornell.edu
      6. Legal Information Institute — Undue Influencelaw.cornell.edu

      Silverline Legal Notes is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.

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