In Foster
v. Mountain Coal Company, LLC, the employer thought it had settled an ADEA
claim with its employee. The employee filed an ADEA lawsuit, and the employer
moved to dismiss based on the employee’s acceptance of a severance package that
included a signed agreement and release. The agreement tracked the ADEA
requirements for such agreements including noting that the employee had
“opportunity for consideration and consultation with employee’s attorney” and
that the employee “may discuss this Agreement with his/her attorney . . . to
the extent necessary to interpret this Agreement.” Additionally, the
employee actually talked with an attorney before signing the agreement.
The
federal district court in Colorado denied the employer’s motion to dismiss. The
court pointed out that the statutory language of the ADEA says that an
individual must be “advised in writing to consult with an attorney prior to
executing the agreement.” The district judge held that the release only
provided “in passive language and in past tense that [the employee] had the
‘opportunity for consideration and consultation with [his] attorney,’ and that
[the employee] ‘may discuss the Agreement with his[] attorney.’” While
this language in the release might “substantially comply” with the ADEA,
“substantial compliance is inadequate.” According to the Supreme Court and
the Tenth Circuit, strict compliance is required.