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Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 18809
Experience:  Employment/Labor Law Litigation
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I was recently out on Maternity leave through the Oregon

Customer Question

I was recently out on Maternity leave through the Oregon Family Leave Act. I did not yet qualify for FMLA, I got a call last week that they were eliminating my position, because it was explained that they wanted to restructure the whole process. I went yesterday to get my items from my office and I was given a separation agreement that outlined that basically I couldn't sue for whatever reason. I was under the impression that this was a business decision that since I was gone they figured out they didn't need a recruiter. Well, I was given an envelope and was told that's a copy of the agreement. When I got in the car after getting my items and what have you I decided to open it, and in it was not only a copy of the separation letter but another letter explaining that my position was being eliminated due to a tenuous, unpleasant and ineffective working relationship with hiring managers as well as I was only "relatively" effective in my position. I feel I was duped in the phone conversation as well as when I went to sign. I wouldn't have signed the agreement if I had been told what was in the letter/knew there was a letter to read to begin with in the first place. I also researched some items and it seems that my agreement is baring me from bringing complaints through FLSA which seems to be something that can't be done. Is there anyway I can get out of this separation agreement?
Submitted: 1 year ago.
Category: Employment Law
Customer: replied 1 year ago.
I should add that the items they stated in the letter explaining the reason for the position elimination were never brought to me as an issue, I, however; did bring issues concerning my relationship with hiring managers to my manager who is the HR director. I was often told that I just have to CYOA (cover your own ass) and do as they ask. Some of the things they "asked" weren't something I was willing to do and I also let my supervisor know about those items and I never got any backing on not doing those items or not doing them. So I feel now that because I wouldn't comply with their desired (illegal) hiring practices they feel they couldn't work with me, and so being on leave they eliminated my position.
Expert:  Allen M., Esq. replied 1 year ago.

You would have to first challenge the agreement itself, alleging fraud and or misrepresentation in their obtaining the agreement.

The problem I see though is that, even if you challenged the agreement (and returned any severance that was given to you in return for the agreement), you'd have to establish a legitimate basis for a lawsuit. In an "at will" employment situation, it is very difficult to do. If you felt, before this letter, that the employer could reasonably argue that they were reorganizing and they, in fact, are getting rid of that position, then the letter doesn't really alter that truth. It's just an additional fact, not a contrary fact.

If, however, they did not eliminate the position but just replaced you without someone, the next question is one of "why." You stated that you were on Oregon's leave act maternity leave, and so you'd have the ability to allege discrimination based on the use of that right. You also mentioned something akin to retaliation, by stating that you complained to them about hiring practices that you were not willing to engage in. Finally, you mentioned the FLSA and I don't know if this relates to the hiring practices or if you had your own wage and hour issues that needed to be resolved.

Only you can really weight the potential of those claims against the employer though, as compared with the expense of challenging the validity of this agreement that you signed, knowing that you were using medical leave and knowing that you'd made the complaints about the illegal practices to them already. A court could reasonably hold that you knowingly entered into the agreement because you were aware of sufficient facts that gave you notice of potential claims, and that their withholding of the letter doesn't amount to fraud because they had no obligation to give you an actual reason for their decision to eliminate the position.

On these facts alone, I would consider this a very tenuous claim and if you received a sizable severance, even more so.