Tenth Circuit Withdraws Decision Requiring Disclosure of Selection Criteria Under OWBPA

The Older Workers Benefit Protection Act (OWBPA), which amended the federal Age Discrimination in Employment Act (ADEA), requires that employers seeking a release of age discrimination claims disclose job titles and ages of employees separated as part of a voluntary or involuntary reduction. In Kruchowski v. Weyerhaueuser Co., 423 F.3d 1139 (10th Cir. 2005), the Tenth Circuit became the first U.S. Court of Appeals to hold that the OWBPA also requires employers to disclose the selection criteria used to choose employees for separation in the involuntary reduction (RIF) context. See Seyfarth Shaw’s September 2005 Management Alert (www.seyfarth.com/OMM092605). On May 2, 2006, the Tenth Circuit withdrew its 2005 decision and issued a new one. The new decision still holds that Weyerhaeuser violated the OWBPA, and thus failed to obtain valid ADEA waivers, because it provided job titles and ages for the wrong "decisional unit." However, because the court withdrew its earlier decision, no federal appellate authority requires disclosure of RIF selection criteria.