We don't mean that the employer in this case used foul language. We mean its words weren't "written in a manner calculated to be understood by the average individual." That phrase is part of the Older Workers Benefit Protection Act, which governs how waivers should be written if they are to be valid. Such waivers are generally given to employees chosen for layoff, in an effort to forestall their filing lawsuits against the employer.

What happened. In the earlier years of this century, IBM laid off thousands of employees in many divisions. Each person chosen for layoff was offered severance pay and other benefits in exchange for waiving his or her right to sue IBM for any of several reasons. In 2001, 10 ex-employees from one division, all of them over 40, decided to sue IBM, charging that the reduction in force had violated the Age Discrimination in Employment Act (ADEA). IBM countersued, claiming the plaintiffs had violated the waiver they all signed. A judge in a California federal district court ruled in favor of IBM and levied a judgment of $27,500 jointly against the former employees. They appealed to the 9th Circuit, which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.

What the court said. Appellate judges noted first that laid-off IBM employees from another division had won their ADEA case before the 8th Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota). They had sued over the same waiver being considered by the 9th Circuit, where plaintiffs wanted judges to defer to the earlier ruling. Judges refused and turned to the waiver itself.

Signers were told they were agreeing not to sue IBM on any grounds (including ADEA). But later in the same paragraph, signers were informed they could still file a charge with the Equal Employment Opportunity Commission (EEOC) and that EEOC enforces ADEA. Judges ruled that language could confuse anyone--not just the average employee. So they invalidated the waiver, and plaintiffs can proceed with their suit. One attorney has estimated that some 20,000 of those IBM laid off nationwide were over 40, so there may be large numbers of other plaintiffs. Syverson, et al. v. IBM, U.S. Court of Appeals for the 9th Circuit, No. 04-16449 (8/31/06).

Point to remember: What in the world did IBM mean by the waiver? Its lawyers told judges they attempted to say that employees cannot be asked to waive the right to file an EEOC charge--but that by signing the waiver they agreed not to exercise that right. We think the lawyers should have asked HR to review that wording 'cause the pros would have told them it wasn't clear.