Nor can employers circumvent the „non-tender back“ rule by using other means to restrict a worker`s right to challenge a waiver agreement or by sanctioning an employee for challenging a waiver agreement. For example, an employer cannot require a worker to agree to pay damages to the employer or to pay the employer`s attorneys` fees for the sole purpose of bringing a retirement action. However, employers are not precluded from recovering attorneys` fees or fees expressly approved by federal law. 29 F.R.C. § 1625.23 (b). If you decide to mislead the employee into accepting a severance pay agreement, you can and probably will be held legally responsible for how you create your severance agreement and consult a professional if you have any uncertainties. Fortunately, most employers and their human resources departments offer generous severance pay to their outgoing employees. However, some employers may not be aware that termination agreements for employees over the age of 40 differ. For the termination of the employment relationship to be valid for employees over the age of 40, the worker must accept and sign a waiver of age discrimination. .