assignment4_2014.docx
1. EEOC Challenges Standard Separation/Severance Agreement Language
Read : Three Lawsuits Brought by the U.S. EEOC Challenge Employer Separation Agreements, from the Retail Labor and Employment Law blog by Epstein Becker Green, P.C.: http://www.retaillaborandemploymentlaw.com/eeoc/three-lawsuits-brought-by-the-us-eeoc-challenge-employer-separation-agreements/. For additional information about the EEOC lawsuits discussed in this article, you can look at the EEOC’s press releases about them:
EEOC v. CollegeAmerica Denver: http://www.eeoc.gov/eeoc/newsroom/release/5-5-14.cfm
EEOC v. CVS Pharmacy: http://www.eeoc.gov/eeoc/newsroom/release/2-7-14.cfm
EEOC v. Baker & Taylor: http://www.eeoc.gov/eeoc/newsroom/release/7-11-13c.cfm
Respond: New management at the XYZ Company is not happy with the performance of Juanita Jones, a senior supervisor who has been with the company for 20 years and is well known in the industry. In order to avoid embarrassment to Ms. Jones and to XYZ, the HR Director works out a separation arrangement with Ms. Jones that will allow her to resign and provide her with a cash settlement, a letter of reference and cooperation with her unemployment claims in exchange for signing a separation agreement with XYZ.
You are employment counsel to XYZ. The HR Director sends you a draft separation agreement for Ms. Jones which includes the following provision:
Release. Ms. Jones, on behalf of herself, her descendants, heirs, executors, assigns, and successors, hereby promises not to sue and fully releases, acquits, and discharges XYZ Company and its subsidiaries and affiliates, as well as its owners, trustees, directors, officers, agents, and employees, from any and all claims, wages, demands, assistance, support, rights, liens, agreements, contracts, covenants, actions, suits, rights to appeal, entitlements and notices, causes of action, obligations, debts, costs, expenses, interests, attorneys' fees, contributions, damages, judgments, orders and liabilities including those arising out of or in any way connected with her employment relationship with and separation from XYZ Company or any other transactions, occurrences, acts or omissions or any loss, damage or injury whatever, committed or omitted prior to the date of this Agreement, and including, without limitation, claims for breach of contract, libel, slander, wrongful discharge, intentional infliction of emotional harm, or other tort, or discrimination or harassment based upon any federal, state, or municipal statute or local ordinance relating to discrimination in employment.
Given your knowledge of the EEOC’s recent lawsuits against employers based on the language in their separation agreements, what, if anything, would you advise XYZ Company to do with this provision? In your response you can explain the advice you would give, re-write this provision, or both.
2. “Mini-WARN” Laws
Read: The Worker Adjustment and Retraining Notification Act Overview from the U.S. Department of Labor: http://www.dol.gov/compliance/laws/comp-warn.htm. The WARN Act requires certain employers to provide employees and communities with advance notice when mass layoffs are planned.
Respond: Many states have what are called “Mini-WARN” laws that are similar to WARN, but have somewhat different provisions. You may select New York, New Jersey or Connecticut for this assignment. Compare your state’s Mini-WARN law with WARN and detail the differences. Explain what these differences mean to employers in your state.
For the first time in its 50 years in business, LMNOP Corp. is dealing with declining revenues and needs to reduce the company payroll. It has a number of highly paid older employees, and in an attempt to avoid layoffs LMNOP decides to offer an early retirement incentive: employees over 62 years of age with at least 15 years of service will be offered a $20,000.00 stipend if they retire before the end of the year. Employment counsel tells HR to make sure that the agreements signed by the employees accepting the early retirement incentive include the “OWBPA language.”
Respond: Research the “OWBPA” (Older Workers Benefit Protection Act). Which employees are covered by the OWBPA? What impact does the OWBPA have on LMNOP’s early retirement plan and agreements?
