Commission Approves Opinion Letter on Whether Non-U.S. Citizen Employees of U.S. Employers Who Work Outside the United States Must Be Included in OWBPA Disclosures

WASHINGTON – The U.S. Equal Employment Opportunity Commission (EEOC) announced today that the Commission approved a formal opinion letter in response to a request asking for clarity regarding whether employees who are not U.S. citizens and work outside of the United States for American employers (or foreign firms controlled by American employers) are required to be included in disclosure requirements pursuant to provisions of the Older Workers Benefit Protection Act (OWBPA), which amended the Age Discrimination in Employment Act of 1967 (ADEA).

The opinion letter was approved by vote of the Commission on Jan. 13, 2021 as a written interpretation or opinion of the Commission under Section 7 of the ADEA and the Commission’s Regulations, including 29 C.F.R. § 1626.21.  The opinion letter concludes that employers subject to the requirements of the ADEA are not required to include in OWBPA disclosures employees working outside the United States who are not U.S. citizens because such individuals are not “employees” for purposes of the ADEA.  The opinion letter explains that the OWBPA requires that only covered employees within the applicable “decisional unit” must be included in an OWBPA disclosure.

“The opinion letter the Commission issued today demonstrates the EEOC’s unwavering commitment to providing clear guidance and compliance assistance to employers and workers,” said EEOC Chair Janet Dhillon.

A formal opinion letter represents the Commission’s official position on the matter raised and reliance upon it may provide a defense to liability.  A formal opinion letter is approved by a vote of the Commission and is signed by the Commission’s Legal Counsel on behalf of and as approved by the Commission.

Members of the public may request a formal opinion letter from the Commission on the application of EEOC-enforced laws to a specific question or factual scenario.  The Commission has discretion whether and how to respond to these requests.  Generally, these letters concern matters where the application of existing regulations or guidance may not be clear.          

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov.  Stay connected with the latest EEOC news by subscribing to our email updates.