Older Workers Benefit Protection Act of 1990 (OWBPA)

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

29 CFR Ch. XIV

Older Workers Benefit Protection Act of 1990 (OWBPA)

AGENCY: Equal Employment Opportunity Commission (EEOC).

ACTION: Notice of Intent to form a Negotiated Rulemaking Advisory

Committee to Develop a Proposed Rule: Request for representation.

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SUMMARY: EEOC announces its intent to establish an OWBPA Negotiated

Rulemaking Advisory Committee (``the Committee'') under the Negotiated

Rulemaking Act (NRA), the Federal Advisory Committee Act (FACA), and

section 9 of the Age Discrimination in Employment Act of 1967, as

amended (ADEA), 29 U.S.C. 628, to negotiate issues associated with the

development of a Notice of Proposed Rulemaking (NPRM) on Title II of

OWBPA. The Committee will include representatives of the parties

interested in, or affected by, the outcome of the proposed rule. EEOC

requests that interested parties submit their requests for membership

on the Committee.

DATES: EEOC must receive written requests for membership by October 2,

1995.

ADDRESSES: All written requests for Committee membership, and any

comments on the rulemaking process, should be sent to: Executive

Secretariat, EEOC, 1801 L Street, NW., Washington, DC 20507.

FOR FURTHER INFORMATION CONTACT:

Joseph N. Cleary, Director, ADEA Division, Office of Legal Counsel,

EEOC, 1801 L Street, NW., Washington, DC 20507 (202) 663-4690.

SUPPLEMENTARY INFORMATION:

I. Background

Congress amended the ADEA in 1990 to clarify the prohibitions

against discrimination on the basis of age. In Title I of OWBPA,

Congress addressed discrimination in employee benefits. Title II

addressed waivers of rights and claims under the ADEA, amending section

7 of that Act by adding a new subsection (f). Title II expressly

provided that unsupervised waivers may be valid and enforceable under

the ADEA only if they meet certain enumerated requirements and are

knowing and voluntary waivers of rights. EEOC intends to engage in

rulemaking on certain Title II issues.

In light of the 1990 amendments to the ADEA, EEOC published an

Advance Notice of Proposed Rulemaking (ANPRM) in the Federal Register,

57 FR 10626 (March 27, 1992), seeking information from the public on

various issues under Titles I and II of OWBPA. In response to the

ANPRM, EEOC received approximately 40 comments, many of which presented

detailed analyses of Title II issues, raising the possibility that EEOC

should provide formal guidance on waivers of rights.

This Notice announces EEOC's intent to use negotiated rulemaking to

develop a proposed Title II rule. It also sets forth basic concepts of

negotiated rulemaking and outlines the criteria that EEOC expects to

use in selecting the Committee and conducting the rulemaking. This

Notice allows 30 days for interested parties to request appointment to

the Committee.

II. Negotiated Rulemaking in General

The Administrative Conference of the United States (ACUS) has

discussed why negotiated rulemaking may alleviate certain problems

associated with more traditional rulemaking procedures:

Experience indicates that if the parties in interest were to

work together to negotiate the text of a proposed rule, they might

be able in some circumstances to identify the major issues, gauge

their importance to the respective parties, identify the information

and data necessary to resolve the issues, and develop a rule that is

acceptable to the respective interests, all within the contours of

the substantive statute.

47 FR 30708 (June 18, 1982); 1 CFR 305.82-4.

There have been numerous effective uses of negotiated rulemaking

procedures by such agencies as the Environmental Protection Agency, the

Department of Transportation, and the Federal Aviation Administration.

EEOC believes that the use of negotiated rulemaking procedures will

meet the goals set out in the ACUS analysis, above, and adopts those

goals by reference.

III. Justification for Use of Negotiated Rulemaking

In selecting Title II of OWBPA as a subject for negotiated

rulemaking, EEOC has made the following determinations under criteria

set out in the NRA:

(1) There is a need for a rule;

(2) There are a limited number of identifiable interests that will

be significantly affected by the rule;

(3) There is a reasonable likelihood that a Committee can be

convened with a balanced representation of persons who:

(a) Can adequately represent the interests identified under

paragraph (2), above; and

(b) Are willing to negotiate in good faith to reach a consensus on

the proposed rule;

(4) There is a reasonable likelihood that the Committee will reach

a consensus on the proposed rule within a reasonable fixed period of

time;

(5) The procedure will not unreasonably delay the NPRM and the

issuance of a final rule;

(6) EEOC has adequate resources and is willing to commit those

resources, including technical assistance, to the Committee;

(7) EEOC, to the maximum extent possible consistent with its legal

obligations and the need by EEOC Commissioners to review any draft

rulemaking, will use the consensus of the Committee with respect to the

proposed rule as the basis for the NPRM.

EEOC will follow all requirements set out in the ADEA, the

Administrative

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Procedures Act (APA), or any other statute with regard to rulemaking,

including the need for a notice and comment period to permit members of

the public to present their concerns regarding the NPRM. Nothing herein

would deny Committee members the right to take part in the APA comment

process.

In the event that EEOC does not receive requests for representation

from a sufficient number of individuals or groups representing the

affected interests, EEOC reserves the right to undertake rulemaking

processes other than negotiated rulemaking.

IV. Issues for Negotiation

This list is for purposes of general notice only and is not

intended to be either an exclusive or a mandatory list of issues. EEOC

will work with the Committee to decide which of the issues listed, or

other issues not listed, will be negotiated in the negotiated

rulemaking process. EEOC welcomes comments from the public within the

next 30 days with regard to possible issues to be considered by the

Committee.

1. Section 7(f)(1)(F) of the ADEA mandates that an employee be

given either 21 days or 45 days to decide whether or not to sign a

waiver, depending upon whether the employer's action falls within the

requirements of section 7(f)(1)(H). Is it necessary to restart the 21

or 45 day period if (a) a material modification is made to the waiver

agreement and/or to the consideration offered by the employer; or (b)

any modification is made to the waiver agreement?

2. May the 21, 45, and 7 day periods set out in section 7 of the

ADEA be shortened by mutual consent of the parties? If so, what proof

is necessary to determine if the time shortening is voluntary on the

employee's part?

3. Section 7(f)(1)(H) of the ADEA contains notification

requirements ``if a waiver is requested in connection with an exit

incentive or other employment termination program offered to a group or

class of employees * * *'' Are the requirements in that section limited

to voluntary separation programs, or would the requirements apply also

to a waiver offered during an involuntary termination such as a

reduction in force?

4. How should EEOC define such terms appearing in section

7(f)(1)(H) as ``program'', ``class'', ``unit'', ``group'', ``job

classification'', and ``organizational unit''?

5. Does the ADEA permit an employer to satisfy the notification

requirements in section 7(f)(1)(H) by having the information available

for any interested employee in a central location, such as the

employer's personnel office, or is it necessary for an employer to

provide all relevant information to every affected employee?

6. What are the minimum requirements of ``knowing and voluntary''

where an employer and employee privately and independently settle a

charge that has been filed with the EEOC?

7. What is meant by the language in section 7(f)(1)(D) of the ADEA

allowing waivers ``only in exchange for consideration in addition to

anything of value to which the individual already is entitled''? May an

employer that has previously given benefits (such as severance pay)

without requiring a waiver of ADEA rights later change its policy or

practice to require a waiver in exchange for such benefits?

8. What is the legal status of the consideration given for a waiver

if EEOC finds that the waiver is invalid?

9. Is an employer required to offer more consideration for a waiver

of rights by a person who is age 40 or over than is offered to a person

under the age of 40?

V. Negotiation Procedures

The following proposed procedures and guidelines are based upon 5

U.S.C. 581 et seq., and would apply to EEOC's process. These procedures

and guidelines may be augmented or modified as a result of comments

received in response to this Notice of Intent or during the negotiation

process, within the parameters of applicable law.

A. Notice of Intent To Establish an OWBPA Negotiated Rulemaking

Advisory Committee

For the reasons stated in previous sections, EEOC announces its

intent to establish the Committee in accordance with the requirements

of FACA and the General Services Administration (GSA) guidelines at 41

CFR 101-6.10 et seq.

B. Committee Notice

After evaluating the comments and requests received pursuant to

this Notice, EEOC will issue a Committee Notice announcing the

establishment of the Committee and the membership of the Committee. The

Committee membership roster will be published in the Federal Register.

C. Interests Involved

(1) EEOC has tentatively identified the following interests as ones

that may wish to participate in the negotiations through their

representatives:

* Groups assisting older persons.

* Large and small employers.

* Labor organizations.

* State and local governments.

* Bar organizations.

* Institutions of higher education.

(2) One purpose of this Notice of Intent is to determine whether

the rulemaking would substantially affect any interests that are not

listed above. EEOC is willing to expand the list of affected interests

based upon comments received. EEOC believes that affected interests

should be represented on the Committee and that the Committee have

balanced representation.

D. Participants

The Committee is not likely to exceed 20 participants, including

EEOC's representatives on the Committee. If a smaller number of

participants can represent effectively the interests affected by the

rulemaking, EEOC will structure a smaller Committee.

It is expected that Committee members will have substantial

expertise in the technical aspects of Title II of OWBPA and the

concerns of employers and older employees with respect to rights and

obligations under the ADEA. Persons interested in being appointed as

members of the Committee should detail their experience and

qualifications, the interest(s) they wish to represent, and how those

interest(s) would be affected by the rule.

E. Good Faith Negotiation

Participants should be willing to negotiate in good faith in an

effort to reach an appropriate consensus on the issues involved in the

rulemaking.

F. Facilitators

The Federal Mediation and Conciliation Service will provide two

Facilitators for this rulemaking. Their role is to help the negotiation

process to run smoothly, assist participants reach consensus, chair the

actual negotiations, and determine the feasibility of negotiating

particular issues. Other duties may be added during the negotiating

process.

G. EEOC Representatives

The EEOC representatives will be full and active participants in

the consensus building negotiations. EEOC also will provide the

Committee with necessary support personnel and technical resources, to

the extent feasible.

H. Meeting Schedule

Once the Committee has been selected, EEOC will, after consultation

with the Committee members, publish in the Federal Register the date of

the first meeting. The first meeting will be held at EEOC Headquarters,

1801 L

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Street, NW., Washington, DC, and it is anticipated that all future

meetings will also be held at that address. At that first meeting, the

Committee will focus upon procedural matters and protocols, including

dates, times, and locations of future meetings; identification of the

principal issues for resolution; and a target date for the completion

of the NPRM.

In order to prevent delay in the preparation of guidance under

Title II of OWBPA, EEOC intends to terminate the Committee's activities

no later than 180 days after the date of the first meeting, unless

circumstances call for extending the deadline.

I. Committee Procedures

Committee meetings will be conducted in accordance with the

requirements of FACA, which provides for filing a Committee Charter

with GSA and appropriate Congressional committees, meetings open to the

public, filing of written statements by interested persons before or

after meetings, presentation of oral statements where time permits, and

retention of meeting records.

Committee meetings will be announced in the Federal Register. The

Committee will establish the detailed procedures for its meetings.

J. Records of Meetings

In accordance with FACA, EEOC will keep minutes of all Committee

meetings and will place these minutes in the public rulemaking docket.

K. Definition of Consensus

The goal of the negotiation process is ``unanimous concurrence

among the interests represented.'' 5 U.S.C. 582(2). EEOC expects

Committee members to establish their own working definition of the term

``consensus.''

Dated: August 28, 1995.

Gilbert F. Casellas,

Chairman.

[FR Doc. 95-21654 Filed 8-30-95; 8:45 am]

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