Older Workers Benefit Protection Act
PL 101-433 (S.1511), enacted 10/16/1990

104 STAT. 978 
PUBLIC LAW 101-433—OCT. 16, 1990 
Public Law 101-433 
101st Congress 
An Act 
Oct. 16, 1990 
[S. 1511] 
Older Workers 
Benefit 
Protection Act. 
Pensions. 
Health care. 
29 u s e 621 note. 
To amend the Age Discrimination in Employment Act of 1967 to clarify the protec-
tions given to older individu£ds in regard to employee benefit plans, and for other 
purposes. 
Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the "Older Workers Benefit Protection 
Act". 
TITLE I—OLDER WORKERS BENEFIT 
PROTECTION 
29 u s e 621 note. 
SEC. 101. FINDING. 
Retirement. 
The Congress finds that, as a result of the decision of the Supreme 
Court in Public Employees Retirement System of Ohio v. Betts, 109 
S.Ct. 256 (1989), legislative action is necessary to restore the original 
congressional intent in passing and amending the Age Discrimina-
tion in Employment Act of 1967 (29 U.S.C. 621 et seq.), which was to 
prohibit discrimination against older workers in all employee bene-
fits except when age-based reductions in employee benefit plans are 
justified by significant cost considerations. 
SEC. 102. DEFINITION. 
Section 11 of the Age Discrimination in Emplojonent Act of 1967 
(29 U.S.C. 630) is amended by adding at the end the following new 
subsection: 
"(1) The term 'compensation, terms, conditions, or privileges of 
employment' encompasses all employee benefits, including such 
benefits provided pursuant to a bona fide employee benefit plan.". 
SEC. 103. LAWFUL EMPLOYMENT PRACTICES. 
Section 4 of the Age Discrimination in Employment Act of 1967 
(29 U.S.C. 623) is amended— 
(1) in subsection (f), by striking paragraph (2) and inserting 
the following new paragraph: 
"(2) to take any action otherwise prohibited under subsection 
(a), (b), (c), or (e) of this section— 
"(A) to observe the terms of a bona fide seniority system 
that is not intended to evade the purposes of this Act, 
except that no such seniority system shall require or permit 
the involuntary retirement of any individual specified by 
section 12(a) because of the age of such individual; or 
"(B) to observe the terms of a bona fide employee benefit 
plan— 
49-139 O - 90 (433) 
PUBLIC LAW 101-433—OCT. 16, 1990 
104 STAT. 979 
"(i) where, for each benefit or benefit package, the 
actueil amount of pajnnent made or cost incurred on 
behalf of an older worker is no less than that made or 
incurred on behalf of a younger worker, as permissible 
under section 1625.10, title 29, Code of Federal Regula-
tions (as in effect on June 22,1989); or 
"(ii) that is a voluntary early retirement incentive 
plan consistent with the relevant purpose or purposes 
of this Act. 
Notwithstanding clause (i) or (ii) of subparagraph (B), no such 
employee benefit plan or voluntary early retirement incentive 
plan shall excuse the failure to hire any individual, and no such 
employee benefit plan shall require or permit the involuntary 
retirement of any individual specified by section 12(a), because 
of the age of such individual. An employer, emplojonent agency, 
or labor organization acting under subpareigraph (A), or under 
clause (i) or (ii) of subparagraph (B), shall have the burden of 
proving that such actions are lawful in any civil enforcement 
proceeding brought under this Act; or"; 
(2) by redesignating the second subsection (i) as subsection (j); 
£ind 
(3) by adding at the end the following new subsections: 
"(k) A seniority system or employee benefit plEin shall comply 
with this Act regardless of the date of adoption of such system or 
plan. 
"(1) Notwithstanding clause (i) or (ii) of subsection (fX2XB)— 
"(1) It shall not be a violation of subsection (a), (b), (c), or (e) solely 
because— 
"(A) an employee pension benefit plan (as defined in section 
3(2) of the Employee Retirement Income Security Act of 1974 (29 
U.S.C. 1002(2))) provides for the attainment of a minimum age 
as a condition of eligibility for normal or early retirement 
benefits; or 
"(B) a defined benefit plan (as defined in section 3(35) of such 
Act) provides for— 
"(i) payments that constitute the subsidized portion of an 
early retirement benefit; or 
"(ii) social security supplements for plan participants 
that commence before the age and terminate at the age 
(specified by the plan) when participants are eligible to 
receive reduced or unreduced old-age insurance benefits 
under title II of the Social Security Act (42 U.S.C. 401 et 
seq.), and that do not exceed such old-age insurance bene-
fits. 
"(2XA) It shall not be a violation of subsection (a), (b), (c), or (e) 
solely because following a contingent event unrelated to age— 
"(i) the value of any retiree health benefits received by an 
individual eligible for an immediate pension; and 
"(ii) the value of any additional pension benefits that are 
made available solely as a result of the contingent event unre-
lated to age and following which the individusd is eligible for 
not less than an immediate and unreduced pension, 
are deducted from severance pay made available as a result of the 
contingent event unrelated to age. 
"(B) For an individual who receives immediate pension benefits 
that are actuarially reduced under subparagraph (AXi), the amount 
of the deduction available pursuant to subparagraph (AXi) shall be 
104 STAT. 980 
PUBLIC LAW 101-433—OCT. 16, 1990 
reduced by the same percentage as the reduction in the pension 
benefits. 
"(C) For purposes of this paragraph, severance pay shall include 
that portion of supplemental unemplojmient compensation benefits 
(as described in section 501(cX17) of the Internal Revenue Code of 
1986) t h a t -
'll) constitutes additional benefits of up to 52 weeks; 
"(ii) has the primary purpose and effect of continuing benefits 
until an individual becomes eligible for an immediate and 
unreduced pension; and 
"(iii) is discontinued once the individual becomes eligible for 
an immediate and unreduced pension. 
"(D) For purposes of this paragraph, the term 'retiree health 
benefits' means benefits provided pursuant to a group health plan 
covering retirees, for which (determined as of the contingent event 
unrelated to age)— 
"(i) the package of benefits provided by the employer for the 
retirees who are below age 65 is at least comparable to benefits 
provided under title XVIII of the Social Security Act (42 U.S.C. 
1395 et seq.); and 
"(ii) the package of benefits provided by the employer for the 
retirees who are age 65 and above is at least comparable to that 
offered under a plan that provides a benefit package with one-
fourth the value of benefits provided under title XVIII of such 
Act. 
"(EXi) If the obligation of the employer to provide retiree 
health benefits is of limited duration, the value for each individual 
shall be calculated at a rate of $3,000 per year for benefit years 
before age 65, and $750 per year for benefit years beginning at age 
65 and above. 
"(ii) If the obligation of the employer to provide retiree health 
benefits is of unlimited duration, the value for each individual shall 
be calculated at a rate of $48,000 for individuals below age 65, and 
$24,000 for individuals age 65 and above. 
"(iii) The values described in clauses (i) and (ii) shall be calculated 
based on the age of the individual as of the date of the contingent 
event unrelated to age. The values are effective on the date of 
enactment of this subsection, and shall be adjusted on an annual 
basis, with respect to a contingent event that occurs subsequent to 
the first year after the date of enactment of this subsection, based on 
the medical component of the Consumer Price Index for all-urban 
consumers published by the Department of Labor. 
"(iv) If £in individual is required to pay a premium for retiree 
health benefits, the value calculated pursuant to this subparagraph 
shall be reduced by whatever percentage of the overall premium the 
individual is required to pay. 
"(F) If an employer that has implemented a deduction pursuant to 
subparagraph (A) fails to fulfill the obligation described in subpara-
graph (E), any aggrieved individual may bring an action for specific 
performance of the obligation described in subparagraph (E). The 
relief shall be in addition to any other remedies provided under 
Federal or Stete law. 
"(3) It shall not be a violation of subsection (a), 0)), (c), or (e) solely 
because an employer provides a bona fide employee benefit plan or 
plans under which long-term disability benefits received by an 
individual are reduced by any pension benefits (other than those 
attributable to employee contributions)— 
PUBLIC LAW 101-433—OCT. 16, 1990 
104 STAT. 981 
"(A) paid to the individual that the individual voluntarily 
elects to receive; or 
"(B) for which an individual who has attained the later of age 
62 or normal retirement age is eligible.". 
SEC. 104. RULES AND REGULATIONS. 
29 USC 623 note. 
Notwithstanding section 9 of the Age Discrimination in Employ-
ment Act of 1967 (29 U.S.C. 628), the Equal Employment Oppor-
tunity Commission may issue such rules and regulations as the 
Commission may consider necessary or appropriate for carrying out 
this title, and the amendments made by this title, only after con-
sultation with the Secretary of the Treasury and the Secretary of 
Labor. 
SEC. 105. EFFECTIVE DATE. 
29 USC 623 note. 
(a) IN GENERAL.—Except as otherwise provided in this section, this 
title and the amendments made by this title shall apply only to— 
(1) any employee benefit established or modified on or after 
the date of enactment of this Act; and 
(2) other conduct occurring more than 180 days after the date 
of enactment of this Act. 
(b) COLLECTIVELY BARGAINED AGREEMENTS.—With respect to any 
employee benefits provided in accordance with a collective bargain-
ing agreement— 
(1) that is in effect as of the date of enactment of this Act; 
(2) that terminates after such date of enactment; 
(3) any provision of which was entered into by a labor 
organization (as defined by section 6(dX4) of the Fair Labor 
Standards Act of 1938 (29 U.S.C. 206(dX4))); and 
(4) that contains any provision that would be superseded (in 
whole or part) by this title and the amendments made by this 
title, but for the operation of this section, 
this title and the amendments made by this title shall not apply 
until the termination of such collective bargaining agreement or 
June 1,1992, whichever occurs first. 
(c) STATES AND POLITICAL SUBDIVISIONS.— 
(1) IN GENERAL.—With respect to any employee benefits pro-
vided by an employer— 
(A) that is a State or political subdivision of a State or 
any agency or instrumentality of a State or political sub-
division of a State; and 
(B) that maintained an employee benefit plan at any time 
between June 23, 1989, and the date of enactment of this 
Act that would be superseded (in whole or part) by this title 
and the amendments made by this title but for the oper-
ation of this subsection, and which plan may be modified 
only through a change in applicable State or local law, 
this title and the amendments made by this title shall not apply 
until the date that is 2 years after the date of enactment of this 
Act. 
(2) ELECTION OF DISABILITY COVERAGE FOR EMPLOYEES HIRED 
PRIOR TO EFFECTIVE DATE.— 
(A) IN GENERAL.—An employer that maintains a plan 
described in paragraph (IXB) may, with regard to disability 
benefits provided pursuant to such a plan— 
(i) following reasonable notice to all employees, im-
plement new disability benefits that satisfy the require-
104 STAT. 982 
PUBLIC LAW 101-433—OCT. 16, 1990 
ments of the Age Discrimination in Emplo3rment Act of 
1967 (as amended by this title): and 
(ii) then offer to each employee covered by a plan 
described in paragraph (IXB) the option to elect such 
new disability benefits in lieu of the existing disability 
benefits, if— 
(I) the offer is made and reasonable notice pro-
vided no later than the date that is 2 years after 
the date of enactment of this Act; and 
(II) the employee is given up to 180 days after the 
offer in which to make the election. 
(B) PREVIOUS DISABILITY BENEFITS.—If the employee does 
not elect to be covered by the new disability benefits, the 
employer may continue to cover the employee under the 
previous disability benefits even though such previous bene-
fits do not otherwise satisfy the requirements of the Age 
Discrimination in Emplojrment Act of 1967 (as amended by 
this title). 
(C) ABROGATION OF RIGHT TO RECEIVE BENEFITS.—An elec-
tion of coverage under the new disability benefits shall 
abrogate any right the electing employee may have had to 
receive existing disability benefits. The employee shall 
maintain any years of service accumulated for purposes of 
determining eligibility for the new benefits. 
(3) STATE ASSISTANCE.—The Equal Employment Opportunity 
Commission, the Secretary of Labor, and the Secretary of the 
Treasury shall, on request, provide to States assistance in 
identifying and securing independent technical advice to assist 
in compljdng with this subsection. 
(4) DEFINITIONS.—For purposes of this subsection: 
(A) EMPLOYER AND STATE.—The terms "employer" and 
"State" shall have the respective meanings provided such 
terms under subsections (b) and (i) of section 11 of the Age 
Discrimination in Employment Act of 1967 (29 U.S.C. 630). 
(B) DISABILITY BENEFITS.—The term 'disability benefits' 
means any program for employees of a State or political 
subdivision of a State that provides long-term disability 
benefits, whether on an insured basis in a separate em-
ployee benefit plan or as part of an employee pension 
benefit plan. 
(C) REASONABLE NOTICE.—The term "reasonable notice" 
means, with respect to notice of new disability benefits 
described in paragraph (2)(A) that is given to each em-
ployee, notice that— 
(i) is sufficiently accurate and comprehensive to ap-
praise the employee of the terms and conditions of the 
disability benefits, including whether the employee is 
immediately eligible for such benefits; and 
(ii) is written in a manner calculated to be under-
stood by the average employee eligible to participate. 
(d) DISCRIMINATION IN EMPLOYEE PENSION BENEFIT PLANS.—Noth-
ing in this title, or the amendments made by this title, shall be 
construed as limiting the prohibitions against discrimination that 
are set forth in section 4(j) of the Age Discrimination in Employ-
ment Act of 1967 (£is redesignated by section 103(2) of this Act). 
(e) CONTINUED BENEFIT PAYMENTS.—Notwithstanding any other 
provision of this section, on and after the effective date of this title 
PUBLIC LAW 101-433—OCT. 16, 1990 
104 STAT. 983 
and the amendments made by this title (as determined in accord-
ance with subsections (a), (b), and (c)), this title and the amendments 
made by this title shall not apply to a series of benefit pa)nnents 
made to an individual or the individual's representative that began 
prior to the effective date and that continue after the effective date 
pursuant to an arrangement that was in effect on the effective date, 
except that no substantial modification to such arrangement may be 
made after the date of enactment of this Act if the intent of the 
modification is to evade the purposes of this Act. 
TITLE II—WAIVER OF RIGHTS OR CLAIMS 
SEC. 201. WAIVER OF RIGHTS OR CLAIMS. 
Section 7 of the Age Discrimination in Employment Act of 1967 
(29 U.S.C. 626) is amended by adding at the end the following new 
subsection: 
"(fXD An individual may not waive any right or claim under this 
Act unless the waiver is knowing and voluntary. Except as provided 
in paragraph (2), a waiver may not be considered knowing and 
voluntary unless at a minimum— 
"(A) the waiver is part of an agreement between the individ-
ual and the employer that is written in a manner calculated to 
be understood by such individual, or by the average individual 
eligible to participate; 
(B) the waiver specifically refers to rights or claims arising 
under this Act; 
"(C) the individual does not waive rights or claims that may 
arise after the date the waiver is executed; 
"(D) the individual waives rights or claims only in exchange 
for consideration in addition to an3i:hing of value to which the 
individual already is entitled; 
* 
"(E) the individual is advised in writing to consult with an 
attorney prior to executing the agreement; 
"(FXi) the individual is given a period of at least 21 days 
within which to consider the agreement; or 
"(ii) if a waiver is requested in connection with an exit 
incentive or other emplojnnent termination program offered to 
a group or class of employees, the individual is given a period of 
at least 45 days within which to consider the agreement; 
"(G) the agreement provides that for a period of at least 7 
days following the execution of such agreement, the individual 
may revoke the agreement, and the agreement shall not become 
effective or enforceable until the revocation period has expired; 
"(H) if a waiver is requested in connection with an exit 
incentive or other emplojnnent termination program offered to 
a group or class of employees, the employer (at the commence-
ment of the period specified in subparagraph (F)) informs the 
individual in writing in a manner calculated to be understood 
by the average individual eligible to participate, as to— 
"(i) any class, unit, or group of individuals covered by 
such program, any eligibility factors for such program, and 
any time limits applicable to such program; and 
"(ii) 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. 
104 STAT. 984 
PUBLIC LAW 101-433—OCT. 16, 1990 
"(2) A waiver in settlement of a charge filed with the Equal 
Employment Opportunity Commission, or an action filed in court by 
the individual or the individual's representative, alleging age 
discrimination of a kind prohibited under section 4 or 15 may not be 
considered knowing and voluntary unless at a minimum— 
"(A) subparagraphs (A) through (E) of paragraph (1) have 
been met; and 
"(B) the individual is given a reasonable period of time 
within which to consider the settlement agreement. 
"(3) In any dispute that may arise over whether any of the 
requirements, conditions, and circumstances set forth in subpara-
graph (A), (B), (C), (D), (E), (F), (G), or (H) of paragraph (1), or 
subparagraph (A) or (B) of paragraph (2), have been met, 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 pursuant to paragraph (1) or (2). 
"(4) No waiver agreement may affect the Commission's rights and 
responsibilities to enforce this Act. No waiver may be used to justify 
interfering with the protected right of an employee to file a charge 
or participate in an investigation or proceeding conducted by the 
Commission.". 
29 u s e 626 note. 
SEC. 202. EFFECTIVE DATE. 
(a) IN GENERAL.—The amendment made by section 201 shall not 
apply with respect to waivers that occur before the date of enact-
ment of this Act. 
OJ) RULE ON WAIVERS.—Effective on the date of enactment of this 
Act, the rule on waivers issued by the Equal Employment Oppor-
tunity Commission and contained in section 1627.16(c) of title 29, 
Code of Federal Regulations, shall have no force and effect. 
TITLE III—SEVERABILITY 
29 u s e 621 note. 
SEC. 30L SEVERABILITY. 
If any provision of this Act, or an amendment made by this Act, or 
the application of such provision to any person or circumstances is 
held to be invalid, the remainder of this Act and the amendments 
made by this Act, and the application of such provision to other 
persons and circumstances, shall not be affected thereby. 
Approved October 16, 1990. 
LEGISLATIVE HISTORY—S. 1511 (H.R. 3200): 
HOUSE REPORTS: No. 101-664 accompanying H.R. 3200 (Comm. on Education and 
Labor). 
SENATE REPORTS: No. 101-263 (Comm. on Labor and Human Resources). 
CONGRESSIONAL RECORD, Vol. 136 (1990): 
Sept. 17, 18, 24, considered and passed Senate. 
Oct. 2, 3, considered and passed House.