SUPPLEMENTARY INFORMATION:

The Age Discrimination in Employment Act of 1967 (ADEA) allows for individuals to waive rights and claims protected under the Act, provided certain circumstances are met; particularly that the waiver is knowing and voluntary. For an individual's waiver in connection with exit incentives or other employment termination programs to be considered knowing and voluntary, the employer must inform the individual in writing in a manner calculated to be understood by the average individual eligible to participate, and the waiver must provide certain information to the individual, including information about covered individuals and eligibility, as specified in the statute. The EEOC's regulations clarify that the relevant section of the ADEA addresses two principal issues: to whom information must be provided, and what information must be disclosed to such individuals. The employer does not provide this information to the EEOC; the ADEA and the EEOC's regulation solely require that the employer provide this information to any employee it would apply to, and not to the Federal government.

As defined in OMB's regulation at 5 CFR 1320.3(c), a “collection of information” under the PRA includes “requiring the disclosure to an agency, third parties or the public of information.” Pursuant to the Paperwork Reduction Act of 1995, and OMB regulation 5 CFR 1320.8(d)(1), the Commission solicits public comment to enable it to:

(1) Evaluate whether the collection of information is necessary for the proper ( printed page 67571) performance of the Commission's functions, including whether the information will have practical utility;

(2) Evaluate the accuracy of the Commission's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

Overview of This Information Collection

Collection Title: Waivers of Rights and Claims Under the ADEA; Informational Requirements.

OMB Number: 3046-0042.

Type of Respondent: Business, state or local governments, not for profit institutions.

Description of Affected Public: Any employer with 20 or more employees that seeks waiver agreements in connection with exit incentive or other employment termination program.

Number of Respondents: 4,944.

Estimated Annual Burden Hours: 80,043.

Burden Hour Cost: $4,661,394.53.

Federal Cost: None.

Number of Forms: None.

Abstract: The EEOC enforces the Age Discrimination in Employment Act (ADEA), as amended, which prohibits discrimination against employees and applicants for employment who are age 40 or older. The ADEA allows employees to waive their rights to challenge termination from employment as age discrimination when several statutory conditions are met. If a waiver is requested in connection with exit incentives or other employment termination programs offered to a group or class of employees, the employer must inform the individual in writing of the class, unit, or group of individuals covered by such program; any eligibility factors for such program; any time limits applicable to such program; 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. The purpose of requiring the employer to disclose this information to an employee is to provide the employee with enough information regarding the program to allow that employee to make an informed choice as to whether to sign a waiver agreement. The ADEA and the implementing regulation require that the employer provide this information to applicable employees, not to the EEOC. The regulation at 29 CFR 1625.22 reiterates those disclosure requirements. The EEOC seeks an extension without change for the third-party disclosure requirements contained in this regulation.

Burden statement: In 2016, the EEOC conducted a limited survey as the foundation for estimating the burden hours per Respondent. The estimated burden hours per Respondent are a combination of the hours to create an ADEA waiver and the hours to distribute the waiver to employees as part of an exit incentive or other employment termination program. The goal of the 2016 survey was to identify the actual costs of creating and distributing ADEA waivers and better understand what type of employees were involved in this process. The EEOC learned that human resource managers (senior and junior) and legal counsel and staff (internal and external counsel) carry most of the paperwork and human capital burden for drafting and distributing the waivers to employees.

In sum, the burden hours for the creation of the ADEA waiver are estimated to be 8.25 per Respondent ( i.e., employer), while burden hours for the distribution of the ADEA waiver are estimated to be 7.94 per Respondent. Thus, the total burden hours per Respondent is 16.19.

The total annual burden hour estimate for this information collection is calculated by multiplying the number of Respondents ( i.e., employers) by the total burden hours per Respondent, resulting in a total burden hour estimate for this collection of 80,043 hours [4,944 Respondents ^[1] × 16.19 hours per Respondent].

Per Tables 1 and 2 below, the EEOC estimates that the approximate burden hour cost of preparing the ADEA waiver notice is $468.47 per Respondent, and the approximate burden hour cost of distributing the ADEA waiver notice is $474.37 per Respondent. Thus, the total burden hour cost per Respondent is $942.84. For all 4,944 Respondents who are projected to have reductions in force and request waiver notices, the total preparation cost is $2,316,112.22, and the total distribution cost is $2,345,282.31. Thus, the total burden hour cost for all 4,944 Respondents is $4,661,394.53 [$2,316,112.22 + $2,345,282.31]. Table 1 reflects the calculation of the costs of creating the ADEA waiver and Table 2 reflects the calculation of the costs of distributing the ADEA waiver.

91 FR 67570