If you are 40 or older and your employer asks you to sign a severance agreement that releases your age-discrimination claims, federal law gives you three specific clocks: at least 21 days to consider the offer before signing, at least 7 days after signing to revoke, and, if your separation is part of a group layoff, at least 45 days instead of 21 to consider. Those rules are floors, not ceilings, and an agreement that shortchanges any of them is unenforceable as to the age-discrimination waiver. The Supreme Court has also held you do not have to give the severance back to bring the claim.

To see what that looks like in practice, take David. He is a 52-year-old engineering manager whose company just handed him a severance agreement. The agreement releases "all claims, including those under the Age Discrimination in Employment Act," and asks him to sign within 14 days. David has two questions running at once: is the 14-day deadline allowed, and what happens if he signs anyway? The answers turn on OWBPA's specific procedural requirements, which run below.

What does OWBPA cover, and who does it apply to?

OWBPA applies whenever an employer conditions severance, enhanced severance, or any other benefit on the employee waiving claims under the ADEA. The ADEA itself protects employees aged 40 and over from age-based discrimination in hiring, firing, promotion, compensation, and benefits. If you are 40 or over and your severance agreement contains a release of claims, that release almost certainly includes ADEA claims, which is what triggers OWBPA's procedural requirements.[1]

OWBPA does not require your employer to give you severance. It governs how a waiver is obtained when severance is offered. An employer can decline to offer severance at all and OWBPA has no role. Once the offer is on the table with a release of ADEA claims attached, the procedural floor kicks in.

Why 21 days, and what restarts the clock?

For an individual separation, the employer must give you at least 21 days to consider the agreement before you sign. This is a floor. Your employer can give you more time and frequently does. The 21 days starts when you receive the agreement in final, written form. If your employer materially changes the terms during the 21-day window, the count restarts under EEOC interpretation, although a minor edit (a typo, a name correction) does not.[2]

You can sign earlier than 21 days if you choose to. But the agreement still has to give you the option of taking the full 21 days. An agreement that requires you to sign within, say, 7 days is invalid as to the ADEA waiver, even if you would have signed quickly anyway. The Supreme Court made this point clear in Oubre v. Entergy Operations, Inc., 522 U.S. 422 (1998): a defective OWBPA waiver does not bar an ADEA claim, and the employee does not have to return the severance to bring the claim.[3]

Worked example

David's defective 14-day window

David's severance agreement asks him to sign within 14 days and release all claims, including ADEA claims. The 14-day window is the tell:

OWBPA floor: 21 days for an individual separation.
David's window: 14 days.
Result: the ADEA portion of the waiver is unenforceable, even if David signs on day 7.

Under Oubre, David does not have to tender the severance back to sue. He can sign, accept the payment, and still bring an ADEA charge with the EEOC if the facts otherwise support one. The defect is the employer's procedural shortcoming, not David's.

Practical move: David can also use the defect as leverage during the offer window. The 14-day deadline is not enforceable; he has at least 21 days regardless of what the agreement says, and a counterproposal asking for the full 21 (plus other terms) loses him nothing.

What is the 7-day revocation period for?

After you sign, you have at least 7 days to revoke. Revocation must be in writing and delivered to whoever the agreement designates. Your employer cannot pay you the severance until the 7-day revocation period expires. That is OWBPA's structural protection: even if you signed under emotional pressure, you have a week to think it over and pull back without losing your job (you have already lost your job; you would lose only the severance).[1]

The 7-day window is also a floor. Your employer can give you longer. State law sometimes layers on additional revocation rights. California and Minnesota in particular impose state-specific revocation periods that overlap with OWBPA but are not identical.

What changes for group layoffs?

If your separation is part of a "group termination" or "exit incentive program" affecting two or more employees, the consideration period extends from 21 days to 45 days. The 7-day revocation period stays at 7. The 45-day period exists because group layoffs are statistically more likely to disparately affect older workers, so the law gives those workers more time to consider the implications.[1]

In a group layoff, OWBPA also requires the employer to disclose the eligible job titles and ages of all individuals selected, and the eligible job titles and ages of all individuals not selected, in the same decisional unit. This disclosure is what makes age-discrimination claims actionable in group layoffs: without the data, employees cannot determine whether older workers were selected at higher rates than would be expected by chance.

What makes an OWBPA waiver actually valid?

OWBPA enumerates seven requirements. A waiver missing any of them is not "knowing and voluntary" and does not bar the employee from bringing an ADEA claim.

#	Requirement	Source
1	Written in plain English the employee can understand	[1]
2	Specifically references rights under the ADEA	[1]
3	Does not waive rights or claims that arise after the date of signing	[1]
4	Exchanged for consideration above and beyond what the employee is already entitled to	[1]
5	Advises the employee in writing to consult an attorney before signing	[1]
6	Provides at least 21 (individual) or 45 (group) days to consider	[1]
7	Provides at least 7 days after signing to revoke	[1]

If any of these are missing or defective, the waiver is unenforceable as to ADEA claims even if the employee signed and accepted the severance.[1]

What can I do if the agreement is non-compliant?

A waiver that violates OWBPA does not bar an ADEA claim. The Supreme Court in Oubre held that the employee does not have to "tender back" the severance before suing. You can keep the severance and still pursue the ADEA claim. This rule has practical consequences: if your agreement gives you only 14 days to consider when 21 are required, or omits the written advisement to consult counsel, you have a defective waiver and you retain your ADEA rights regardless of whether you sign.

Bringing an ADEA claim usually starts with a charge filed at the EEOC within 180 days (or 300 days in deferral states) of the alleged discrimination. The EEOC investigates, attempts conciliation, and either pursues the claim itself or issues a right-to-sue letter that lets the employee file in federal court.[4]

How should I use the 21-day window?

The 21 days is leverage. Most employees sign on day 3 or 4 because the offer feels final and they want to move forward. The employer's experience says otherwise: about half of all severance agreements receive at least one counterproposal during the consideration period, and the consideration period itself is the obvious moment to send one.

What to ask for during the 21 days:

Cleaner non-disparagement language that is mutual rather than one-sided
A neutral reference letter or agreed-upon talking points for prospective employers
Extension of healthcare coverage past the standard COBRA window
Acceleration of any unvested equity that would have vested in the next 6 to 12 months
A longer post-termination exercise window for vested stock options
Removal of any non-compete or non-solicit language that overreaches. The non-compete enforceability scanner shows whether your clause is void by statute or vulnerable to challenge under your state's reasonableness standard

The layoff calculator grades severance offers against industry benchmarks and surfaces the specific clauses to negotiate. The methodology page documents the data sources behind those benchmarks. For a tax view of what your severance check will actually look like after withholding, see the severance tax withholding guide. For the prior-stage protection that may apply if your separation is part of a covered mass layoff, see the WARN Act 60-day notice rule. If your offer arrived as part of a group layoff, how to read your OWBPA disclosure list walks through the older-worker selection-rate math the 45-day version of this rule entitles you to.

Frequently asked questions

What is the OWBPA 21-day rule?

The OWBPA 21-day rule at 29 U.S.C. § 626(f)(1)(F)(i) requires that an employer give a worker aged 40 or over at least 21 days to consider any severance agreement that asks the worker to waive ADEA age-discrimination claims.[1] The 21 days is a statutory floor, not a default. An agreement that gives the worker fewer days, or that pressures the worker to sign before the 21 days expire, is invalid as to the ADEA waiver under Oubre v. Entergy Operations, Inc., 522 U.S. 422 (1998).[3]

How long do I have to sign a severance agreement at 40 or older?

For an individual separation, the floor is 21 days from receipt of the final written agreement.[1] If the separation is part of a group exit or exit incentive program affecting two or more employees, the floor extends to 45 days.[1] Either window can be longer if the employer chooses, but never shorter. You can sign before the window expires if you want to, but the agreement must offer you the full window. Material changes by the employer during the window restart the clock under EEOC interpretation at 29 CFR § 1625.22.[2]

How does OWBPA interact with state law?

OWBPA is the federal floor. State laws can layer on additional consideration periods, additional revocation periods, or additional waiver requirements. California's Business and Professions Code § 16600 voids most non-compete clauses regardless of OWBPA, and California Code of Civil Procedure § 1542 requires specific language for general releases. Minnesota Statute § 181.932 provides additional revocation rights. Your state's specific overlay shows up in the calculator's state-by-state data for California or /ny for New York. The federal protections apply on top of any state protections, never instead of them.

What if I have already signed and the 7 days have not passed?

Send written notice of revocation to the contact named in the agreement, by the method the agreement specifies (email, certified mail, hand delivery to HR, etc.). Send it before the 7-day window closes. Keep proof of delivery. Once revoked, the agreement is void and you do not receive the severance, but you also have not waived any claims.

Does OWBPA apply if I am under 40?

No. OWBPA's procedural requirements are tied to ADEA waivers, and the ADEA only protects employees 40 and over. If you are under 40, your employer is not required to give you 21 days, 7 days to revoke, or any of the OWBPA disclosures. State law may still impose its own consideration-period or revocation requirements; check your state's overlay before signing.

What is a "decisional unit" for the group disclosure?

The decisional unit is the broader group from which the employer selected those terminated. It might be a department, a job classification, a geographic location, or the entire company, depending on how the layoff was structured. The employer's selection of decisional unit affects whether disparate-impact age-discrimination claims are viable, which is why OWBPA requires the disclosure in the first place. The EEOC's interpretation runs in 29 CFR § 1625.22.[2]

Can my employer revoke the offer during the 21-day period?

Generally yes, but not as retaliation for protected activity (filing an EEOC charge, complaining about discrimination, etc.). Most employers will not revoke once the offer is on the table because doing so creates its own legal exposure, but the consideration period is not a binding offer in the contract sense. If the offer is revoked, see an employment attorney before doing anything else.

Sources & verification

100 / 100 verifiedReviewed April 30, 2026

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