Severance Agreement Oppression

Regulators are getting stricter about severance agreements.  Read on to learn about how some severance agreements were found to be TOO strict and how to protect yourself when signing one.  There are certain claims that you cannot waive in your severance agreement.  For example, you cannot waive your EEOC (Equal Employment Opportunity Commission) claims.  But your employer can make you sign away your right to recover monetary damages for any EEOC claims. Don’t let yourself suffer from severance agreement oppression.

If the severance agreement has an employer non-disparagement clause, there must be language in the agreement to allow former employees to give truthful information to the EEOC and that allows the employee to testify about their employer if subpoenaed.

You cannot waive your FLSA (Fair Labor Standards Act) claims.  But your employer can make you sign a statement acknowledging that you have been properly paid.

You can waive your claims under the ADEA (Age Discrimination in Employment Act) in a severance agreement.

In order for the ADEA waiver to be valid, the employer must be sure these seven factors are met:

  1. The severance agreement must reference the ADEA by its full name.
  2. The employee must be provided at least 21 days to sign the severance agreement.
  3. After signing the agreement, the employee must be provided at least 7 days to change his or her mind.
  4. The employee must be advised to consult an attorney before signing the agreement.
  5. If the employee was terminated as part of a group, he or she must be given written notice.
  6. Employees terminated as part of a group have at least 45 days to considering signing the agreement.
  7. Employees terminated as part of a group have a right to see a written list of the group of workers from which the employer chose the workers to be laid off. The list must state who was laid off, who was not and the age and title of every employee in the group.

Integration and Severability

A severance agreement should contain an integration clause.  

An integration clause states that the severance agreement is the one true agreement – that there are no side agreements, whether oral or written.  

The integration clause may include a carve-out for important side agreements, such as an agreement about the employee’s pension.

A severance agreement should also contain a severability clause.

A severability clause states that if one portion of the severance agreement is deemed to be invalid, the rest of the agreement still stands.

Our firm will review your severance agreement and meet with you via phone or video chat, review your severance agreement, answer your questions, point out any issues and suggest modifications, and draft a written analysis to assist you in understanding your situation. For this review and consultation there will be a legal fee of $750. 

One our employment lawyers will review your agreement and meet with you for 20 minutes in person or by phone to over the agreement.  

See here for more information. Don’t let severance agreement oppression get you down.

Author Photo

Robert Ottinger, Esq.

Robert Ottinger is an employment attorney who focuses on representing executives and employees in employment disputes. Before starting his firm, Robert slugged it out in courtrooms trying cases for the government. Robert served as a Deputy Attorney General for the California Department of Justice in Los Angeles and then as Assistant Attorney General for the New York Attorney General’s Office in Manhattan.

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