To minimize the risk of potential litigation, many employers offer money or benefits to employees who leave in exchange for compensation (or „waiver“) of any liability for all claims related to the employment relationship, including actions for discrimination under civil rights laws enforced by the Equal Employment Opportunity Commission (EEOC) – the Employment Age Discrimination Act ( ADEA), Title VII, the Americans with Disabilities Act (ADA) and the Equal Pay Act (EPA). [2] While it is common for executives to negotiate severance pay terms upon first hiring, other employees are generally offered severance agreements and are asked to sign a waiver at the time of termination. When presented with a departure agreement, many employees wonder: Is it legal? Do I have to sign it? If your employer decides to leave your employment, you may receive a departure agreement that requires you to waive your right to sue for unlawful dismissal based on age, race, sex, disability and other types of discrimination. While most signed waivers are enforceable if they comply with certain contractual principles and legal requirements, an employer cannot legally restrict your right to testify, support or participate in an investigation, hearing or proceeding conducted by the EEOC or prevent you from filing a discrimination complaint with the agency. Nor can an employer legally compel you to return the money or benefits they gave you in exchange for giving up your rights when you file a lawsuit. While this document is not intended to cover all the issues that arise when your employer notifies you that you will be fired or fired, the following checklist can help you decide whether or not to sign a waiver. If the transfer of duties prior to separation or downgrading results in a surplus of employees in the winning competitive area, all employees who change functions compete on an equal footing with other workers in the winning competitive zone for jobs available under the rules to reduce the applicable effect, with one exception to the following paragraph. Example 6: A press release stating, „I had a reasonable and sufficient time and opportunity to consult with an independent legal representative of my choice before signing this full release of all claims“ did not meet the OWBPA`s requirement that a person be advised to consult a lawyer. Although the voluntary early retirement contract advised employees to consult with financial and tax advisors, seek advice from local staff representatives, and attend retirement seminars, it said nothing about seeking independent legal advice before choosing retirement and passing the agreement. [18] An employee cannot appeal to the Merit Systems Protection Board solely on the basis of a transfer of duties. However, a worker who is called upon to separate or downgrade because of a reduction in effect or an unfavourable measure following the rejection of the transfer may invoke the transfer of duties at issue in that action. Before a downsizing occurs – and after receiving formal approval from the human resources department – the hiring department notifies the employee verbally and in writing.
Written notification must be given at least 30 calendar days before the date of separation. The notification includes: ☐ Preparation of documents. Most employers use at least (a) a voluntary RRF announcement, which clearly sets out eligibility criteria, available severance benefits and timelines, and b) a separation agreement with a full exemption from claims. The same legal requirements for employees to waive claims in involuntary FIR (see above) apply to voluntary INR. In finding that the employee`s waiver was not knowingly and voluntarily waived, one court found that, while the wording of the agreement was „clear and unambiguous,“ it did not explicitly mention the disclosure of complaints of discrimination in the workplace. Given that the employee only attended high school and was not familiar with the law, his argument that he believed he was only releasing claims arising from his voluntary dismissal and the benefit package he accepted was „not an unreasonable conclusion.“ [10] The consideration offered for waiving the right to sue cannot simply be a retirement benefit or a payment of paid or sick leave to which the employee is already entitled, but must be something of value that goes beyond the employee`s existing rights. An example of consideration would be a lump sum payment of a percentage of the employee`s annual salary or regular payments of the employee`s salary for a certain period of time after the dismissal. The signature of the employee and the maintenance of the consideration usually means acceptance of the terms of the agreement. Try to create an agreed announcement of your departure and a letter of recommendation. Ask to design the documents yourself and be sure to specify your main achievements. Attach the letters to the agreement. It will be difficult to sit down with an employee who is about to be fired, but being treated professionally can reduce the employee`s potential anger and resentment.
Employers must ensure that they are prepared for this meeting and that all information has been collected and is available to the employee. Employers will want to show compassion and explain the reasons for the dismissal, review health benefits and COBRA voting procedures, 401(k) options, outplacement services, and the reinstatement process if available. .