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Brandon, Esq.
Brandon, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 1783
Experience:  Has received a certificate of recognition from the California State Senate for his outstanding legal service.
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I am the employer of a terminated employee (aged over 40) who

Resolved Question:

I am the employer of a terminated employee (aged over 40) who was offered a severance agreement. The agreement was signed and has passed the 7 day revocation period. However, prior to the expiration, I agreed to amend the agreement to the following extent:

1) Agreed to 'gross up' the payout of 4,200 so that the net check will be 4,200 after taxes are paid.
2) Agreed to provide a separate check payment to employee for the equivalent of one months Cal Cobra pay.

My question:
Can my addendum include verbiage that says that she is not entitled to an additional 7-day revocation period? Particularly since the amendments only benefit her.
Submitted: 10 months ago.
Category: Employment Law
Expert:  Brandon, Esq. replied 10 months ago.

Brandon, Esq. :

Hello, my name is XXXXX XXXXX it will be my pleasure to assist you today. My goal is to provide you with excellent service. Are you online with me today?

Customer:

yes, thank you.

Brandon, Esq. :

Welcome to the chat

Brandon, Esq. :

Unfortunately I must tell you that by changing the terms of the agreement, you are revoking the original agreement and making a new agreement with the employee. Accordingly, if you want to free of fear of of being sued for discrimination or wrongful termination, you need to allow an additional 7 day period under the OWBPA.

Customer:

Thank you. that is what I need to know.

Brandon, Esq. :

Not a problem. Have I fully answered your question today?

Customer:

yes, thank you.

Brandon, Esq. :

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further. If you do not require any further assistance, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for assisting you.

Brandon, Esq. :

Have a wonderful rest of your day.

Customer:

are you still there?

Brandon, Esq. :

Yes I am. Can I help you with anything else?

Customer:

Yes, please. So we had email communications in which we agreed upon the changes. She was coming in today to sign the amendment and collect the check. I am now letting her know that I cannot provide the check until after 7 days from the signing of the ammendment. Is it still an option to NOT go with the email-agreed-upon amendments and go back to the original signed document and still pay her today under the original terms? Or does the email communications negate the original?

Brandon, Esq. :

It depends on the exact language of the agreement. To have a valid agreement there must be a promise, supported by consideration, prior to revocation.

Brandon, Esq. :

So if this person signed prior to you revoking it, i.e. you received it, had it, then offered more, you can do this. However, if they signed, then you revoked, then you recieved it, then you cannot.

Brandon, Esq. :

Does that make sense?

Customer:

no sorry. . please be clear on when you say 'signed' are you talking about the original severance agreement or the emails?

Customer:

Please advise when I can come by the office. Thanks From my HTC Amaze 4G on T-Mobile. The first nationwide 4G network


----- Forwarded message -----
From: "XXXXX@XXXXXX.XXX" <XXXXX@XXXXXX.XXX>
To: "Wendy Sowski" <XXXXX@XXXXXX.XXX>
Subject: Re: Counter Offer
Date: Fri, Sep 27, 2013 4:21 pm


Wendy, Final offer states $4200, grossed up and tri city will pay for cobra health insurance coverage for October 2013, in which I will accept. I will give a call Monday 9/30 after 10am, to set a time when I can swing by and pick up the checks and sign revised agreement. Claudia Nelson From my HTC Amaze 4G on T-Mobile. The first nationwide 4G network


----- Reply message -----
From: "Wendy Sowski" <XXXXX@XXXXXX.XXX>
To: "XXXXX@XXXXXX.XXX" <XXXXX@XXXXXX.XXX>
Cc: "Alma Freeman" <XXXXX@XXXXXX.XXX>, "Rick Sowski \(Kevin#25\)" <XXXXX@XXXXXX.XXX>
Subject: Counter Offer
Date: Fri, Sep 27, 2013 11:20 am





Claudia,

I am in receipt of your email dated 9/26/2013.

Our offer stands as it was presented and agreed upon with the following amendments:

1) The amount to be paid will be 'grossed up' so that the net check will be $4,200.00.

2) Tri-City Builders, Inc. will pay your Cal-Cobra health insurance premium for the month of October, 2013.

Do not counter as no other changes will be considered.

If this is unacceptable to you, please send your written notice of rescind by close of business today.

If I do not hear back from you by close of business today your check in the amount of $4,200.00, and a separate check for your October Cal-Cobra insurance will be ready for pick up on Monday, September 30, 2013. If you would prefer that the checks be mailed, please provide the address of where you would like them mailed.

I recommend making sure that Aetna has your current address on file for receipt of Cal-Cobra paperwork.

Thank you,

Wendy Sowski

Tri-City Builders, Inc.

2294 N. Batavia Street, Suite E

Orange, CA 92865

(XXX) XXX-XXXX

 



From: "XXXXX@XXXXXX.XXX" <XXXXX@XXXXXX.XXX>
To: XXXXX@XXXXXX.XXX;XXX@XXXXXX.XXX
Sent: Thursday, September 26, 2013 12:28 PM
Subject: Counter Offer


Wendy,
From the advice of my lawyer, I am encouraged to try and renegotiate with you, first. My lawyer has stated that Tri-City has violated 7 CA labor laws codes of conduct.
Please consider this counter offer.
I need a written answer by noon, Friday 9/27
I am asking for 6 mths severance pay grossed up $15,000
( fifteen thousand dollars) and for my health insurance to be paid by Tri-City for 18 mths considering my health condition and the extreme emotional stress that has been caused by terminating me. If these changes are acceptable, please revise the release agreement. Then I will not resind the release agreement and we can put this behind, and move on.
Sincerely,
Claudia Nelson



From my HTC Amaze 4G on T-Mobile. The first nationwide 4G network

Brandon, Esq. :

I was talking about the original severance agreement. The employee may revoke the agreement up to 7 days following the execution of the agreement. Because the agreement is not effective or enforceable until the revocation period expires, the employee must have provided language specifically referencing revocation. Because the email states "counter offer" a counter offer is more than a mere inquiry and is considered to be a revocation.

Customer:

Okay, and as you can see by her cheesy threat, she is one I need to be careful of. It appears that I need to type up an amendment and have her sign it then wait until the 8th day to pay. Any advice for the verbiage on the amendment? I have paid for a form document which will reference back to the original. Anything else?

Brandon, Esq. :

Just make sure that you have a release in full of all claims within the severance. As for referencing back to the original, you may just want to consider putting everything in one document so that there is no confusion. When you start referencing to other documents, there sometimes arises the argument that each party believe the reference was to something it was not. To avoid the unnecessary stress, you should consider making sure the release in full of all claims is in the same document as the consideration being offered (the payment to her)

Brandon, Esq. :

Section B here has some useful language

Brandon, Esq. :

http://www.cela.org/materials/SettlementAgreement1.pdf

Brandon, Esq. :

The most important language being here:

Brandon, Esq. :

Therefore, it is agreed and understood that this Release is a compromise of any and all potentially disputed claims, and that this Release is not an admission of li


ability or wrongdoing by any party.
Brandon, Esq. :

Does that make sense?

Brandon, Esq. :

Also, I should mention I am assuming that you got the form that specifically referenced age discrimination.

Brandon, Esq. :

referencing

Brandon, Esq. :

If not, you will want to specifically refer to the ADEA, and specifically advise her to consult with her attorney before signing the release, and not require her to waive any rights or claims arising after the date of the signature of the release

Customer:

Thank you, Brandon. I think I got it. You are suggesting an entirely new agreement. I believe I have all the things covered you mentioned. You have been very helpful. I will give a good reivew :)

Brandon, Esq. :

Thank you very much. If you ever need to ask for me again, please feel free to do so here:

Brandon, Esq. :

http://www.justanswer.com/law/expert-accident-expert/

Brandon, Esq. :

Enjoy the rest of your day.

Brandon, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 1783
Experience: Has received a certificate of recognition from the California State Senate for his outstanding legal service.
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