Severance Agreement Revocation Period: 7 Days, 21 Days, 45 Days Explained

Three numbers appear in nearly every severance agreement handed to an employee over 40, and they are routinely confused with one another. People search for the "revocation period" when they mean the time to decide, and for "21 days" when they are asking whether they can still back out. The numbers come from one federal statute, they do different jobs, and getting them mixed up can cost you either a severance payment or a claim.

This post sorts them out. The longer discussion of whether and how to revoke an agreement you have already signed is in a separate post. This one is about the periods themselves: what they are, who gets them, how to count them, and what happens when an employer gets them wrong.

Where the Numbers Come From

The Age Discrimination in Employment Act protects employees 40 and older. In 1990 Congress added the Older Workers Benefit Protection Act, which sets the conditions under which an employee can waive ADEA claims. A waiver that does not meet those conditions is not "knowing and voluntary" and is unenforceable as to age claims. The conditions are listed in 29 U.S.C. section 626(f)(1), and the EEOC's regulations at 29 C.F.R. section 1625.22 explain how they work.

Two of the conditions are time periods. The employee must be given a period to consider the agreement before signing, and a period after signing during which the agreement can be revoked. The consideration period is 21 days for an individual agreement and 45 days when the waiver is requested "in connection with an exit incentive or other employment termination program offered to a group or class of employees." The revocation period is seven days in both cases.

Nothing in Ohio law adds to these. Ohio's age discrimination statute, R.C. Chapter 4112, does not impose its own consideration or revocation period, and a release of Ohio age claims is generally judged by the same knowing-and-voluntary standard that applies to other state claims. In practice, employers draft one set of periods to satisfy the federal statute and apply them to the whole release.

The 7-Day Revocation Period

This is the one people usually mean when they ask about the revocation period. After you sign, you have at least seven days to change your mind, and the release of age claims does not become effective or enforceable until the seven days have passed. That is why the first severance payment is almost always scheduled for a date after the revocation period ends. The employer is waiting to see whether the release becomes final.

Several features of the seven days matter in practice. They are calendar days, not business days, so a Friday signature produces a revocation deadline on the following Friday. They run from the date you sign, which is the date next to your signature and not the date you received the document. They cannot be waived or shortened, even if you want to, because the statute makes them a condition of a valid waiver rather than a right you can give up. And they are a minimum: an agreement that gives you ten or fourteen days is measured by its own terms.

Revocation must be done in the way the agreement specifies, usually in writing to a named person, and it must arrive within the period. Most agreements say that revocation voids the entire agreement, which means no severance. Some say that it cancels only the age release while the rest of the agreement survives. Which one you have changes the calculation, and it is worth knowing before day seven.

The 21-Day Consideration Period

Before you sign, you must be given at least 21 days to consider an individual severance agreement that releases age claims. The period starts when you receive the final offer. It is designed to give you time to read the release, consult a lawyer, which the statute separately requires the agreement to advise you to do in writing, and decide.

You can sign before the 21 days run. The regulations allow an employee to shorten the consideration period by signing early, provided the decision is knowing and voluntary and was not induced by the employer through fraud, misrepresentation, or a threat to withdraw or change the offer. An employer that says the offer expires in five days, or that the number will drop if you wait, is doing exactly what the regulation prohibits. The deadline printed on the cover letter does not override the statute.

Changes to the agreement do not restart the clock. Under 29 C.F.R. section 1625.22(e)(4), material or immaterial changes to the initial offer do not restart the running of the 21 or 45 day period unless the parties agree otherwise. If you negotiate a better number or a reference clause, the consideration period continues from the original offer date, which is one reason to raise your requests early rather than late.

The 45-Day Consideration Period

When the waiver is requested as part of a group program, the consideration period is 45 days instead of 21, and the employer must also give each employee a written disclosure listing the job titles and ages of everyone selected for the program and everyone in the same decisional unit who was not. The disclosure list has its own post, because reading it correctly is often the difference between a routine layoff and a provable age claim.

The 45-day period catches more situations than employers sometimes admit. A "group" can be as few as two people, and an "exit incentive or other employment termination program" includes a standard reduction in force in which several employees are offered severance in exchange for a release. If you received 21 days and a colleague in the same department received the same agreement the same week, the question of which period applies is live, and the answer affects whether the age waiver is valid at all.

How to Count

Count calendar days. For the revocation period, day one is the day after you sign, and the period ends at the close of day seven. For the consideration period, day one is the day after you receive the offer. Weekends and holidays count. If the last day falls on a weekend, the agreement may extend the deadline to the next business day, and many do, but the statute does not require it, so do not assume.

Write the dates down when the offer arrives. Note the date you received it, the date 21 or 45 days later, the date you sign, and the date seven days after that. The first severance payment date in the agreement should fall after the last of these. If it falls before, the agreement was drafted carelessly, and careless drafting of the time periods is a sign to read the rest of the release with the same skepticism.

What Happens When the Employer Gets It Wrong

An agreement that omits the seven-day revocation period, shortens the consideration period without the employee's genuine agreement, or applies 21 days to what was actually a group program does not validly waive age discrimination claims. The statute is explicit that the employer bears the burden of proving the waiver was knowing and voluntary, and a missing period is a defect the employer cannot cure after the fact.

Two consequences follow. The employee keeps the age claim despite having signed, and under Oubre v. Entergy Operations, Inc., 522 U.S. 422 (1998), does not have to tender back the severance before asserting it. The rest of the release, covering claims other than age discrimination, is judged under the ordinary knowing-and-voluntary standard and may well survive. An employer who botched the OWBPA periods has usually bought a release of everything except the claim it was most worried about.

This is why the periods are worth checking even after the fact. A release signed months ago with no revocation language, by an employee over 40, in a layoff that swept up several people, is not a closed matter. The full list of OWBPA requirements runs to seven, and the time periods are two of them.

The Bottom Line

Seven days to revoke after signing. Twenty-one days to consider an individual agreement. Forty-five days when the termination is part of a group program. All three protect employees 40 and older who are releasing age claims, the 21 and 45 can be shortened by a genuinely voluntary early signature, and the seven cannot be touched. Under 40, the agreement's own terms are the only deadline. Count in calendar days from the date next to your signature, write the dates down, and if the agreement is missing one of the periods it was supposed to contain, the age release in it is not what the employer thinks it is.

Frequently Asked Questions

What is the revocation period for a severance agreement?

For an employee 40 or older whose agreement releases age discrimination claims, federal law requires at least seven days after signing during which the employee can revoke, and the release of age claims is not effective until that period ends. The seven days are a minimum. If the agreement gives you longer, the agreement controls. If you are under 40, there is no statutory revocation period and the agreement's own terms apply.

Is the revocation period 7 days or 21 days?

Both numbers come from the same statute and do different things. Twenty-one days is the minimum time an employee 40 or older must be given to consider an individual agreement before signing. Seven days is the minimum time after signing during which the employee can revoke. A group termination program raises the consideration period to 45 days but leaves the revocation period at seven.

Is there a revocation period for a severance agreement if I am under 40?

Not under federal or Ohio law. The Older Workers Benefit Protection Act requirements apply only to waivers of age discrimination claims by employees 40 and older. Some employers extend a seven-day revocation period to all employees by contract, so read the agreement. If it is silent, the agreement is binding when signed.

Can I waive the 21-day consideration period by signing early?

Yes. The regulations allow an employee to sign before the 21 or 45 days have run, as long as the decision is knowing and voluntary and the employer did not pressure the early signature. The seven-day revocation period cannot be waived or shortened, and it starts running from the date you actually sign.

Does the revocation period restart if the employer changes the agreement?

Not automatically. Under the EEOC's regulations, changes to the offer, whether or not material, do not restart the consideration period unless the parties agree otherwise. The seven-day revocation period runs from the date you sign the final version. If you negotiate changes, confirm in writing which version you are signing and when the clock starts.

What happens if the agreement does not include a revocation period?

If you are 40 or older and the agreement releases age claims without a seven-day revocation period, the waiver of age discrimination claims is invalid under the OWBPA. The rest of the release may still be enforceable for other claims. The Supreme Court held in Oubre v. Entergy Operations that an employee who signed a non-compliant waiver does not have to return the severance before bringing an age claim.