Do You Have 21 or 45 Days to Consider a Severance Agreement?

If you’re 40 or older, federal law gives you at least 21 days to consider a severance agreement when you’re being terminated individually, and at least 45 days when the agreement is offered as part of a group layoff or exit incentive program. Both minimums come from the Older Workers Benefit Protection Act, which amended the Age Discrimination in Employment Act. If you’re under 40, no federal law sets a specific number of days at all. So the answer to how long you have to consider a severance agreement depends on your age and on whether you’re being let go alone or alongside others.

The 21-Day Rule for Individual Terminations

When an employer terminates a single employee aged 40 or older and asks that person to sign a severance agreement waiving age discrimination claims, the employer must provide at least 21 days to review it. The agreement must also be written in plain language, specifically reference rights under the Age Discrimination in Employment Act, and advise the employee in writing to consult an attorney before signing.¹ If any one of these requirements is missing, the waiver is legally invalid.

The law also requires that you receive something of value beyond what you’re already owed. If your employer owes you a final paycheck or accrued vacation, the severance payment has to be on top of that, not a repackaging of it.

The 45-Day Rule for Group Layoffs

When a severance agreement is offered as part of a group layoff, exit incentive program, or reduction in force involving two or more employees aged 40 or older, the review period extends to at least 45 days.¹ The extra time reflects the added complexity of evaluating whether the layoff itself was fair.

Employers running group terminations must also provide specific written disclosures at the start of that 45-day window. The disclosures must include the job titles and ages of everyone eligible for or selected by the program, along with the ages of employees in the same job classification or unit who were not selected.¹ The employer must also identify the “decisional unit,” meaning the part of the organization from which people were selected for the layoff, along with the eligibility factors and any time limits for the program.²

The point of all this data is to let you judge for yourself whether age played a role. If your employer laid off 30 people and 28 of them were over 50 while younger employees in the same roles stayed, that pattern shows up in the disclosures. Without them, you’d be signing blind.

If You’re Under 40

The 21-day and 45-day rules are protections under the Older Workers Benefit Protection Act. They apply only to employees aged 40 and older. No federal law requires a specific review period for younger workers.³ An employer could theoretically hand a 35-year-old a severance agreement and expect a signature the same day.

You’re not entirely unprotected, though. Courts evaluating waivers of claims under Title VII, the Americans with Disabilities Act, and other federal employment laws look at whether the waiver was “knowing and voluntary.” That weighing includes whether you had enough time to read and understand the agreement and whether you had access to legal counsel. If an employer pressures a younger worker to sign immediately, a court can later find that the waiver wasn’t truly voluntary and refuse to enforce it. Regardless of your age, the safer move is to ask for time and have an attorney review the document. An employment lawyer typically charges between $200 and $2,000 for a severance review, depending on the agreement’s complexity and the attorney’s market.

How the Clock Works

The consideration period starts when you receive the final version of the agreement, not when your employer first mentions the possibility of severance or hands you a preliminary draft. The clock runs continuously through weekends and holidays.⁴

If your employer makes material changes to the offer during the review period, the clock resets. You get a fresh 21 or 45 days from the date you receive the revised agreement.³ This keeps employers from running out the clock with a lowball offer and then swapping in different terms at the last minute.

Signing Before the Deadline

You don’t have to use the full 21 or 45 days. The regulations allow you to sign earlier, which starts the seven-day revocation period right away and can speed up when you receive payment.⁴ There’s a catch: your decision to sign early must be knowing and voluntary. If the employer threatened to withdraw the offer, misrepresented the terms, or offered better terms to employees who signed faster, a court can invalidate the waiver entirely.

The Seven-Day Revocation Window

Even after you sign, the agreement isn’t final. Every OWBPA-compliant severance agreement must include a seven-day revocation period after signing. The agreement only becomes enforceable once those seven days pass without you revoking it.¹ Unlike the consideration period, the seven-day revocation window cannot be shortened by agreement or any other means.⁴ To revoke, you give written notice to your employer within those seven days.

What Happens If the Employer Skips the Rules

If your employer misses any of the OWBPA requirements, the waiver of age discrimination claims is void. Not voidable, not subject to negotiation. Void. You can pursue your ADEA claim as if you never signed anything.¹

Employers sometimes assume they have a fallback: the employee already cashed the severance check, so surely they’d have to return the money before filing a discrimination lawsuit. The Supreme Court rejected that argument in Oubre v. Entergy Operations. The Court held that when a waiver fails to comply with OWBPA, the employee does not have to return the severance money before suing. The employer “cannot invoke the employee’s failure to tender back as a way of excusing its own failure to comply.”⁵

Common employer mistakes include failing to provide the full 21 or 45 days, omitting the written advice to consult an attorney, leaving out the seven-day revocation clause, and in group layoffs, skipping the required disclosures about job titles and ages. Any single failure is enough to invalidate the waiver. You can also file a charge with the EEOC, which has authority to investigate age discrimination claims and enforce the ADEA.

Rights the Agreement Cannot Waive

Some rights survive no matter what the agreement says. A severance agreement can never waive your right to file a charge with the EEOC or to testify, assist, or participate in an EEOC investigation or proceeding. Any clause attempting to block those rights is invalid and unenforceable.⁶ You also cannot waive claims that haven’t arisen yet. If your employer discriminates against you after you sign, the agreement doesn’t shield them.¹

Beyond EEOC rights, employers should not ask you to waive claims for unemployment compensation, workers’ compensation benefits, COBRA health insurance continuation rights, vested retirement benefits under ERISA, or unpaid wages and overtime under the Fair Labor Standards Act.³ Courts have consistently held that private agreements cannot waive FLSA wage claims unless the settlement is supervised by a court or the Department of Labor. If your agreement contains language purporting to waive any of these rights, that’s a red flag worth raising with an attorney before the review period runs out.

1
Office of the Law Revision Counsel. 29 USC 626 – Recordkeeping, Investigation, and Enforcement
2
U.S. Equal Employment Opportunity Commission. Commission Opinion Letter – Older Worker Benefit Protection Act
3
U.S. Equal Employment Opportunity Commission. Q and A – Understanding Waivers of Discrimination Claims in Employee Severance Agreements
4
eCFR. 29 CFR 1625.22 – Waivers of Rights and Claims Under the ADEA
5
Justia U.S. Supreme Court Center. Oubre v Entergy Operations Inc
6
U.S. Equal Employment Opportunity Commission. Enforcement Guidance on Non-Waivable Employee Rights Under EEOC Enforced Statutes