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The opinion
LEVY, J.,
with whom ALEXANDER and CALKINS, JJ., join, concurring.
[¶ 12] I respectfully disagree with the majority’s conclusion that Lovely-Belyea received a notice that complied with the Older Workers Benefit Protection Act (OWBPA) and the State’s enabling act. Nonetheless, I concur with the majority’s conclusion that the judgment should be affirmed because Lovely-Belyea has not demonstrated that the deficiencies in the notice caused her to suffer any actual prejudice.
[¶ 13] The notice was deficient in three ways: First, the OWBPA requires that the notice be “sufficiently accurate and comprehensive to appraise the employee of the terms and conditions of the disability benefits, including whether the employee is immediately eligible for such benefits.” Pub.L. No. 101-433, § 105 (c)(4)(C)(i), 104 Stat. 978 , 982 (1990). The October notice did not contain the terms and conditions of the offer and, specifically, it did not include an indication of whether Lovely-Belyea was immediately eligible for the benefits.
*364 [¶ 14] Second, the State’s enabling act required that an election form be given to each member of the retirement system entitled to make the election “no later than October 16, 1992.” 5 M.R.S.A. § 17941(1)(C) (Supp.1993) (repealed by P.L.1995, ch. 643, § 16). It is undisputed that the October notice did not contain an election form. The fact that an election form was subsequently provided in March does not negate this plain deficiency.
[¶ 15] Third, the OWBPA requires that “the employee [be] given up to 180 days after the offer in which to make the election.” Pub.L. No. 101-433, § 105 (c)(2)(A)(ii)(II), 104 Stat. at 982. In the present case, Lovely-Belyea was given until April 1, 1993 to make her election— 166 days after the October notice and 30 days after the March notice. Neither notice gave her “up to 180 days” in which to make her election. Contrary to the majority’s opinion, the plain language of the “safe harbor” provisions of the OWBPA give the 180 day period to employees to decide whether to make the election, not to employers to arbitrarily create a shorter election period. Reading the provisions to require that employers give employees no less than 180 days is consistent with the legislative history of the act. See 136 CONG. REC. H8614-02, H8619 (1990) (discussing “an election period of at least 180 days”); 136 CONG. REC. S13594-01, S13605 (1990) noting (“[u]nder the transition provision, with reasonable notice, current State employees will have 180 days following the effective date of the new plan to elect whether they want to be covered under the new plan”). Doing so is also consistent with the underlying intent of the “safe harbor” provisions that employees be given “reasonable notice.” See OWBPA, Pub.L. No. 101-433, § 105 (c)(2)(A)®, 104 Stat. at 981-82. The majority’s reading of “up to 180 days” places no limit on the public employer’s ability to arbitrarily designate an unacceptably short election period.
[¶ 16] Despite these deficiencies, I concur with the majority’s decision to affirm the judgment because, as the Superior Court concluded in its order, Lovely-Be-lyea has not shown that she was prejudiced by her employer’s failure to strictly comply with the OWBPA’s notice requirements. “A technical violation of a statutorily prescribed manner to give notice is not fatal when it does not prejudice the party receiving the notice, and a court may disregard nonprejudicial failure ■ to comply strictly with notice requirements.” Town of Ogunquit v. Dep’t of Pub. Safety, 2001 ME 47, ¶ 11 , 767 A.2d 291, 294 . To show such prejudice, Lovely-Belyea must present more than her desire, with the benefit of hindsight, to have made a different election. She has not attempted to do so, however, at any stage of the present proceedings. Accordingly, I agree that the judgment should be affirmed.