Hiring & Firing: What Does a Successful Separation Agreement Between Employer & Employee Look Like?

more+
less-

In light of recent lawsuits and enforcement actions by the Equal Employment Opportunity Commission against companies with overly broad or misleading severance agreements, we asked our contributors:

What exactly is a successful separation agreement between employer and employee? What to include in such a severance agreement, what to exclude?

Here's what we heard back from Chuck Knapp, litigation partner with law firm Faegre Baker Daniels in Minneapolis:

In many respects, the agreements at issue in the EEOC lawsuits are not well written and create the opportunity for bad facts to make bad law – they unnecessarily overreach in seeking to ensure protections for the employer that may go beyond even your typical belt-and-suspenders approach. A successful separation agreement should be short and simple. Recall that the ADEA cautions that waivers must be  "written in a manner calculated to be understood" by the people asked to sign it. 29 U.S.C. § 626(f)(1)(A).

A separation agreement also should address only those issues that need to be addressed; there’s no need to repeat continuing obligations already undertaken by the employee in other agreements – let those agreement speak for themselves. In addition, a separation agreement should fairly delineate for the departing employee what his or her remaining rights may be. As to some of the specific issues addressed by the EEOC in the highly-publicized lawsuits, we recommend that employers:

  • Avoid non-disparagement provisions altogether - the law of defamation already protects employers. However, if such a provision must be included, carve out an explicit exception for communications with government agencies.
  • Avoid covenants not to sue. Such provisions should not be necessary if you have drafted a valid release of claims. However, if such a provision must be included, it should specifically state that it is not intended to prevent the filing of a charge with any governmental agency.
  • Include within your release language a provision explicitly advising the employee that, despite the release, he or she may still file an administrative charge or participate in an administrative investigation.

*

[Chuck Knapp leads Faegre Baker Daniels' employment litigation team and focuses his practice on representing employers in employment-related litigation.]

 

Written by:

Published In:

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© JD Supra Perspectives | Attorney Advertising

Don't miss a thing! Build a custom news brief:

Read fresh new writing on compliance, cybersecurity, Dodd-Frank, whistleblowers, social media, hiring & firing, patent reform, the NLRB, Obamacare, the SEC…

…or whatever matters the most to you. Follow authors, firms, and topics on JD Supra.

Create your news brief now - it's free and easy »

All the intelligence you need, in one easy email:

Great! Your first step to building an email digest of JD Supra authors and topics. Log in with LinkedIn so we can start sending your digest...

Sign up for your custom alerts now, using LinkedIn ›

* With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name.
×
Loading...
×
×