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LawTalk
LawTalk, Attorney
Category: California Employment Law
Satisfied Customers: 27889
Experience:  I have 30 years of experience in the practice of law, including employment law and discrimination law.
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Tricky At Will Employment: What does the below agreement

Resolved Question:

Tricky At Will Employment: What does the below agreement says, whether is it enforceable?

"RAMANSZ CONSULTING AT-WILL EMPLOYMENT AGREEMENT: I understand and acknowledge that my employment with Ramansz is "at-will". This means that either Ramansz or I may terminate my employment at any time, With or Without cause, and with or without notice at SIXTY YEARS OF MY LEGAL AGE. It also means that my job duties, title, responsibilities, reporting level, compensation and benefits, as well as personnel policies and procedures, may be changed at any time."

This agreement has SIXTY YEARS statement; please look at that. If this is signed by me, and written in a mutually signed Offer Letter - then is it enforceable? Please advice.
Submitted: 2 years ago.
Category: California Employment Law
Expert:  LawTalk replied 2 years ago.

Good afternoon,

I'm sorry to hear of the situation.

What you essentially have there is a waiver for discrimination based on age if the employer chooses to fire you based solely on your attaining the age of 60. To do that would be blatant age discrimination and is prohibited generally by the laws of the US, and the State of CA. I believe that the clause will not be enforceable and for the following reasons:

While a potential claim for age discrimination may be waived, there are very specific rules regarding how a waiver must be set out. These requirements include such things as :

Age Discrimination in Employment Act Amendment of 1967

SEC. 201. WAIVER OF RIGHTS OR CLAIMS.
Section 7 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 626) is amended by adding at the end the following new subsection:
`(f)(1) An individual may not waive any right or claim under this Act unless the waiver is knowing and voluntary. Except as provided in paragraph (2), a waiver may not be considered knowing and voluntary unless at a minimum--
`(A) the waiver is part of an agreement between the individual and the employer that is written in a manner calculated to be understood by such individual, or by the average individual eligible to participate;
`(B) the waiver specifically refers to rights or claims arising under this Act;
`(C) the individual does not waive rights or claims that may arise after the date the waiver is executed;
`(D) the individual waives rights or claims only in exchange for consideration in addition to anything of value to which the individual already is entitled;
`(E) the individual is advised in writing to consult with an attorney prior to executing the agreement;

In essence, what this seems to indicate is that the employer may not rely on the language in the document you signed to safely terminate you at age 60. To do so arguably would constitute age discrimination and the court would not enforce the agreement based on public policy issues.

CA law prohibits harassment and discrimination in the workplace and you do have a legal remedy.

Workplace harassment/discrimination is any unwelcome or unwanted conduct that denigrates or shows hostility or an aversion toward another person on the basis of any characteristic protected by law, which includes an individual's race, color, gender, ethnic or national origin, age, religion, disability, marital status, sexual orientation, gender identity, or other personal characteristic protected by law. A conduct is considered unwelcome if the employee did not solicit, instigate or provoke it, and the employee regards XXXXX XXXXX as undesirable or offensive.


In CA you have two possible avenues of approach to dealing with discrimination. If your goal is to ultimately sue in Federal Court, then you will file a complaint with the EEOC, and if you want to be in the CA Superior Court---local to your county---then you will file with the DFEH and, if you want to, with the EEOC as well.


You may a formal complaint with the CA Department of Fair Employment and Housing alleging discrimination based on your age.

To do this you must first make an appointment with the Department to be interviewed, either over the phone or at a local DFEH office. You may call the DFEH at(NNN) NNN-NNNN or apply on line by using the Department’s "Online Appointment System." The system will guide you through questions to determine whether an appointment is right for you.

Alternatively, you may file a complaint with the EEOC (Equal Employment Opportunity Commission). If your company has 15 or more employees (the DFEH only requires that there be 5 or more employees), they are prohibited from discriminating against you. To file a complaint with the EEOC, contact the nearest Equal Employment Opportunity Commission field office. To be automatically connected with the nearest office, call(NNN) NNN-NNNN EEOC website: www.eeoc.gov

Federal law specifically prohibits discrimination, based upon the Ethnicity, Color, Religion, National Origin, Age, Sex and Disability of an individual, with regard to hiring, promotion and firing.


After you file the complaint, your employer will be prohibited from any retaliatory action against you. The EEOC will investigate your claim, and 180 days after the filing of the complaint you may ask for a "right to sue letter". The EEOC will issue you the letter which gives you the right to institute a private civil action against your employer and seek monetary damages.

I hope that you found my answer informative, that you are accepting of my efforts and that you will rate my efforts based on the knowledge I have provided to you.

I wish you the best in 2012.

Thank you.

Doug
Customer: replied 2 years ago.
Indeed Doug, your detail is awesome. However, I would request a little clarification on my situation:

1) I am not 60 yet, and still in 40's, and this agreement was signed at the time of joining.

My question is, Can they terminate me now - though the agreement is signed? If they terminate before 60 (as written in agreement), can i sue them?

2) At the time of selection, they sent me a email offer, and i accepted in email and replied that, i will submit signed documents later. When i went to office for joining, they gave me the new set of documents and asked me sign (both are little different) and in both documents (email and physical) the following statement is common :

"If you accept this offer and the conditions of this offer are satisfied, this letter and the written agreements referenced in this letter shall constitute the complete agreement between you and the company with respect to the initial terms and conditions of your employment. Any representations may have been made to you are expressly cancelled and superseded by this offer and you agree that you are not relying on any such promises"

2.1) I have said, i agree the offer and position in email (03/11) and i have signed another set on (04/10) while joining. Which one is enforceable?

Kindly respond to these two situations (even a short answer will do) .

Sincerely,
Durga
Expert:  LawTalk replied 2 years ago.
Good afternoon Durga,

I'll try and keep it short. Cool I generally prefer to give too much, than too little, information about the law.

The law is unlikely to change between now and when you turn 60---as the laws against discrimination continue to get stricter, not more lenient.

The agreement does state that you are an employee at will. Under CA that is a typical employment situation.

Unless you have a written contract of employment with your employer, you are considered an employee-at-will. This means that there is likely little protection afforded you relating to unreasonable supervisors/bosses, as well as the typical workplace politics and drama which can be so troublesome.

In CA, employees are presumed to be "at will." At-will employees may be terminated for any reason—at any time, even a mistaken reason, they can have their hours or pay decreased and they can suffer a cut in their benefits, so long as it's not illegal or unlawfully discriminatory. Generally, employees who work under an employment contract can only be terminated for reasons specified in the contract. In your state, an employment relationship is at-will unless there is a defined duration for the employment contract or if the contract permits termination by the employer only under specified circumstances.

Unlawful discrimination would include an employer discriminating based upon a person’s Ethnicity, Color, Religion, National Origin, Gender or Disability.

If you are terminated at age 60, based on nothing more than their claim of right under this agreement, I believe that---presuming the same laws are in existence then ans today, that you would have a viable claim for wrongful Termination and Age Discrimination.

As to the two sets of documents that you signed, and to the extent that there are differences in the second set of documents, the second set will be presumed to be controlling as it is later in time. keep in mind that this is not a traditional employment contract you are signing but general expectations. The employer may change those from time to time unless a specific thing is guaranteed to lase a specific period of time.

I hope that you found my answer informative, that you are accepting of my efforts and that you will rate my efforts based on the knowledge I have provided to you.





I wish you the best in 2012.

Thank you.

Doug

LawTalk, Attorney
Satisfied Customers: 27889
Experience: I have 30 years of experience in the practice of law, including employment law and discrimination law.
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