§ 626. — Recordkeeping, investigation, and enforcement.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 29USC626]
TITLE 29--LABOR
CHAPTER 14--AGE DISCRIMINATION IN EMPLOYMENT
Sec. 626. Recordkeeping, investigation, and enforcement
(a) Attendance of witnesses; investigations, inspections, records, and
homework regulations
The Equal Employment Opportunity Commission shall have the power to
make investigations and require the keeping of records necessary or
appropriate for the administration of this chapter in accordance with
the powers and procedures provided in sections 209 and 211 of this
title.
(b) Enforcement; prohibition of age discrimination under fair labor
standards; unpaid minimum wages and unpaid overtime
compensation; liquidated damages; judicial relief; conciliation,
conference, and persuasion
The provisions of this chapter shall be enforced in accordance with
the powers, remedies, and procedures provided in sections 211(b), 216
(except for subsection (a) thereof), and 217 of this title, and
subsection (c) of this section. Any act prohibited under section 623 of
this title shall be deemed to be a prohibited act under section 215 of
this title. Amounts owing to a person as a result of a violation of this
chapter shall be deemed to be unpaid minimum wages or unpaid overtime
compensation for purposes of sections 216 and 217 of this title:
Provided, That liquidated damages shall be payable only in cases of
willful violations of this chapter. In any action brought to enforce
this chapter the court shall have jurisdiction to grant such legal or
equitable relief as may be appropriate to effectuate the purposes of
this chapter, including without limitation judgments compelling
employment, reinstatement or promotion, or enforcing the liability for
amounts deemed to be unpaid minimum wages or unpaid overtime
compensation under this section. Before instituting any action under
this section, the Equal Employment Opportunity Commission shall attempt
to eliminate the discriminatory practice or practices alleged, and to
effect voluntary compliance with the requirements of this chapter
through informal methods of conciliation, conference, and persuasion.
(c) Civil actions; persons aggrieved; jurisdiction; judicial relief;
termination of individual action upon commencement of action by
Commission; jury trial
(1) Any person aggrieved may bring a civil action in any court of
competent jurisdiction for such legal or equitable relief as will
effectuate the purposes of this chapter: Provided, That the right of any
person to bring such action shall terminate upon the commencement of an
action by the Equal Employment Opportunity Commission to enforce the
right of such employee under this chapter.
(2) In an action brought under paragraph (1), a person shall be
entitled to a trial by jury of any issue of fact in any such action for
recovery of amounts owing as a result of a violation of this chapter,
regardless of whether equitable relief is sought by any party in such
action.
(d) Filing of charge with Commission; timeliness; conciliation,
conference, and persuasion
No civil action may be commenced by an individual under this section
until 60 days after a charge alleging unlawful discrimination has been
filed with the Equal Employment Opportunity Commission. Such a charge
shall be filed--
(1) within 180 days after the alleged unlawful practice
occurred; or
(2) in a case to which section 633(b) of this title applies,
within 300 days after the alleged unlawful practice occurred, or
within 30 days after receipt by the individual of notice of
termination of proceedings under State law, whichever is earlier.
Upon receiving such a charge, the Commission shall promptly notify all
persons named in such charge as prospective defendants in the action and
shall promptly seek to eliminate any alleged unlawful practice by
informal methods of conciliation, conference, and persuasion.
(e) Reliance on administrative rulings; notice of dismissal or
termination; civil action after receipt of notice
Section 259 of this title shall apply to actions under this chapter.
If a charge filed with the Commission under this chapter is dismissed or
the proceedings of the Commission are otherwise terminated by the
Commission, the Commission shall notify the person aggrieved. A civil
action may be brought under this section by a person defined in section
630(a) of this title against the respondent named in the charge within
90 days after the date of the receipt of such notice.
(f) Waiver
(1) An individual may not waive any right or claim under this
chapter unless the waiver is knowing and voluntary. Except as provided
in paragraph (2), a waiver may not be considered knowing and voluntary
unless at a minimum--
(A) the waiver is part of an agreement between the individual
and the employer that is written in a manner calculated to be
understood by such individual, or by the average individual eligible
to participate;
(B) the waiver specifically refers to rights or claims arising
under this chapter;
(C) the individual does not waive rights or claims that may
arise after the date the waiver is executed;
(D) the individual waives rights or claims only in exchange for
consideration in addition to anything of value to which the
individual already is entitled;
(E) the individual is advised in writing to consult with an
attorney prior to executing the agreement;
(F)(i) the individual is given a period of at least 21 days
within which to consider the agreement; or
(ii) if a waiver is requested in connection with an exit
incentive or other employment termination program offered to a group
or class of employees, the individual is given a period of at least
45 days within which to consider the agreement;
(G) the agreement provides that for a period of at least 7 days
following the execution of such agreement, the individual may revoke
the agreement, and the agreement shall not become effective or
enforceable until the revocation period has expired;
(H) if a waiver is requested in connection with an exit
incentive or other employment termination program offered to a group
or class of employees, the employer (at the commencement of the
period specified in subparagraph (F)) informs the individual in
writing in a manner calculated to be understood by the average
individual eligible to participate, as to--
(i) any class, unit, or group of individuals covered by such
program, any eligibility factors for such program, and any time
limits applicable to such program; and
(ii) 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.
(2) A waiver in settlement of a charge filed with the Equal
Employment Opportunity Commission, or an action filed in court by the
individual or the individual's representative, alleging age
discrimination of a kind prohibited under section 623 or 633a of this
title may not be considered knowing and voluntary unless at a minimum--
(A) subparagraphs (A) through (E) of paragraph (1) have been
met; and
(B) the individual is given a reasonable period of time within
which to consider the settlement agreement.
(3) In any dispute that may arise over whether any of the
requirements, conditions, and circumstances set forth in subparagraph
(A), (B), (C), (D), (E), (F), (G), or (H) of paragraph (1), or
subparagraph (A) or (B) of paragraph (2), have been met, the party
asserting the validity of a waiver shall have the burden of proving in a
court of competent jurisdiction that a waiver was knowing and voluntary
pursuant to paragraph (1) or (2).
(4) No waiver agreement may affect the Commission's rights and
responsibilities to enforce this chapter. No waiver may be used to
justify interfering with the protected right of an employee to file a
charge or participate in an investigation or proceeding conducted by the
Commission.
(Pub. L. 90-202, Sec. 7, Dec. 15, 1967, 81 Stat. 604; Pub. L. 95-256,
Sec. 4(a), (b)(1), (c)(1), Apr. 6, 1978, 92 Stat. 190, 191; 1978 Reorg.
Plan No. 1, Sec. 2, eff. Jan. 1, 1979, 43 F.R. 19807, 92 Stat. 3781;
Pub. L. 101-433, title II, Sec. 201, Oct. 16, 1990, 104 Stat. 983; Pub.
L. 102-166, title I, Sec. 115, Nov. 21, 1991, 105 Stat. 1079.)
Amendments
1991--Subsec. (e). Pub. L. 102-166 struck out par. (1) designation,
substituted ``Section'' for ``Sections 255 and'', inserted at end ``If a
charge filed with the Commission under this chapter is dismissed or the
proceedings of the Commission are otherwise terminated by the
Commission, the Commission shall notify the person aggrieved. A civil
action may be brought under this section by a person defined in section
630(a) of this title against the respondent named in the charge within
90 days after the date of the receipt of such notice.'', and struck out
par. (2) which read as follows: ``For the period during which the Equal
Employment Opportunity Commission is attempting to effect voluntary
compliance with requirements of this chapter through informal methods of
conciliation, conference, and persuasion pursuant to subsection (b) of
this section, the statute of limitations as provided in section 255 of
this title shall be tolled, but in no event for a period in excess of
one year.''
1990--Subsec. (f). Pub. L. 101-433 added subsec. (f).
1978--Subsec. (c). Pub. L. 95-256, Sec. 4(a), designated existing
provisions as par. (1) and added par. (2).
Subsec. (d). Pub. L. 95-256, Sec. 4(b)(1), substituted references to
the filing of a charge with the Secretary alleging unlawful
discrimination for references to the filing with the Secretary of notice
of intent to sue.
Subsec. (e). Pub. L. 95-256, Sec. 4(c)(1), designated existing
provisions as par. (1) and added par. (2).
Effective Date of 1991 Amendment
Amendment by Pub. L. 102-166 effective Nov. 21, 1991, except as
otherwise provided, see section 402 of Pub. L. 102-166, set out as a
note under section 1981 of Title 42, The Public Health and Welfare.
Effective Date of 1990 Amendment
Section 202(a) of Pub. L. 101-433 provided that: ``The amendment
made by section 201 [amending this section] shall not apply with respect
to waivers that occur before the date of enactment of this Act [Oct. 16,
1990].''
Effective Date of 1978 Amendment
Section 4(b)(2) of Pub. L. 95-256 provided that: ``The amendment
made by paragraph (1) of this subsection [amending this section] shall
take effect with respect to civil actions brought after the date of
enactment of this Act [Apr. 6, 1978].''
Section 4(c)(2) of Pub. L. 95-256 provided that: ``The amendment
made by paragraph (1) of this subsection [amending this section] shall
take effect with respect to conciliations commenced by the Secretary of
Labor after the date of enactment of this Act [Apr. 6, 1978].''
Transfer of Functions
``Equal Employment Opportunity Commission'' and ``Commission''
substituted for ``Secretary'', meaning Secretary of Labor, pursuant to
Reorg. Plan No. 1 of 1978, Sec. 2, 43 F.R. 19807, 92 Stat. 3781, set out
in the Appendix to Title 5, Government Organization and Employees, which
transferred all functions vested by this section in Secretary of Labor
to Equal Employment Opportunity Commission, effective Jan. 1, 1979, as
provided by section 1-101 of Ex. Ord. No. 12106, Dec. 28, 1978, 44 F.R.
1053.
Rule on Waivers
Section 202(b) of Pub. L. 101-433 provided that: ``Effective on the
date of enactment of this Act [Oct. 16, 1990], the rule on waivers
issued by the Equal Employment Opportunity Commission and contained in
section 1627.16(c) of title 29, Code of Federal Regulations, shall have
no force and effect.''
Age Discrimination Claims Assistance
Pub. L. 100-283, Apr. 7, 1988, 102 Stat. 78, as amended by Pub. L.
101-504, Sec. 2, Nov. 3, 1990, 104 Stat. 1298, provided extension period
for filing civil actions under this section, such period consisting of
450 days beginning on Apr. 7, 1988, in cases where a charge was timely
filed with the Equal Employment Opportunity Commission after Dec. 31,
1983, and 450 days beginning on Nov. 3, 1990, in cases where a charge
was timely filed after Apr. 6, 1985, but the Commission did not, within
the applicable period set forth in subsec. (e) of this section either
eliminate the alleged unlawful practice or notify the complainant, in
writing, of the disposition of the charge and of right of such person to
bring civil action on such claim; required the Commission to provide
notice regarding claims for which extension period was applicable; and
required the Commission to submit reports to Congress containing, among
other things, information as to number of persons eligible for extension
period and number of persons who were provided notice regarding claims
for which extension period was provided.
Section Referred to in Other Sections
This section is referred to in section 633 of this title; title 2
section 1311; title 3 section 411.
