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Will signing a severance agreement and general release containing

"Waiver of Recovery" statement that...
Will signing a severance agreement and general release containing "Waiver of Recovery" statement that reads, "I waive my right to any monetary recovery should any rederal, state, or local administrative agency pursue any claims on my behalf arising out of or related to my employment with and/or separation from employment with the Association... forfeit my ability to collect unemployment?

I was just separated from employment after 3.5 years during which time I was promoted to greater responsibilities and no prior warning came on the grounds of performance nor was a performance appraisal completed that indicated improvement needed to be made. My team was also showing growth in $ raised year over year...this felt personal and backhanded at best.
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Answered in 7 minutes by:
11/30/2010
Marsha411JD
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 20,556
Experience: Licensed Attorney with 29 yrs. exp in Employment Law
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Hello,

Can you tell me what it is that you will be getting in exchange for signing this agreement? How long does the employer give you to review it and did they recommend that you consult with an attorney before doing it? Also, do that ever mention any particular law in the release or is it just general like the part you disclosed? Finally, what reason is the employer giving you for termination and what do you think their motivation is?
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Customer reply replied 7 years ago

In return for payment of severance pay of total gross on 8 weeks pay less applicable deductions I hereby waive release and forever discharge Alzheimer's Association from ANY and ALL known or unknown actions, causes of action, claims and liabilities etc etc including attorneys fees which have or could be asserted against Association arising out of or related to my employment with and/or separation from employment with the Association and or any other occurrence up to and including the date of this Agreement including but not limited to:

(A) claims, actions, causes of action arising under Title VII of Civil Rights, the ADEA, employee retirement income security act, the rehabilitiation act, americans with disabilities act, family and medical leave act, lilly ledbetter fair pay act of 2009, exec order 11246, the illinois human rights act and/or any other federal, state municipal or local employment discrimination status etc etc

(B) claims, actions causes of action or liabilities arising under any other federal, state, municipal or local statute, law, ordinance or regulations, and/or

(C) any other claim whatsoever including but not limited to claims for additional severance pay, claims based on breach of contract, wrongful termination, intentional infliction of emotional stress, arising out of or relating to my employment with and/or separation from employment with the Association,

but excluding the filing of an administrative discrimination charge, a suit to challenge the validity of this Agreement under ADEA, any claims which I may make under state workers' comp or unemployment laws, and/or any claims which by law I cannot waive.

I UNDERSTAND THAT THIS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS TO DATE. This paragraph shall operate as a general release and a covenant not to sue to the maximum extent permitted by law.

(2) Waiver of Recovery....I waive my right to any monetary recovery should any federal, state, or local administrative agency pursue any claims in my behalf arising out of or related to my employment with and/or separation from employment w/ the Association.

 

 

....this is the language that brings me pause about signing away any unemployment claims by accepting the severance and this separation agreement. Why would I do that?

Hello again,

Thank you for the additional information although you didn't respond to my questions about the stated reason for your termination or what you think the motivation is to terminate you. Obviously that issue is really important to the issue of whether or not you would want to sign this agreement. First, if you are not being terminated for "cause" or misconduct, you would be entitled to unemployment compensation which would be well over 8 weeks, which from my understanding is the amount of pay you are being offered. If you are being terminated for "cause," then you wouldn't be entitled to unemployment benefits anyway and that part of the severance agreement issue would be moot. So, the reasons for your termination are relevant to making your decision.

As for the agreement itself, it appears to contradict itself in the following two paragraphs:

"but excluding the filing of an administrative discrimination charge, a suit to challenge the validity of this Agreement under ADEA, any claims which I may make under state workers' comp or unemployment laws, and/or any claims which by law I cannot waive."

and...

"(2) Waiver of Recovery....I waive my right to any monetary recovery should any federal, state, or local administrative agency pursue any claims in my behalf arising out of or related to my employment with and/or separation from employment w/ the Association."

In the case where terms of an agreement are either vague or contradictory, the courts will interpret the document in a manner that is most favorable to the non-drafting party. So, it is doubtful that the strange and creative subparagraph (2) would operate to keep you from collecting unemployment, assuming you are eligible. That is especially true since it is a very general paragraph and the more specific paragraph which contains a reference to unemployment benefits, excludes those benefits from the operation of your waiver. Having said all that, it doesn't mean your employer might not try to assert a different interpretation. It just isn't likely to work.

However, your overall consideration should hinge on whether or not accepting 8 weeks in pay is worth the unknown for you. Also, if you have other reasons, such as discrimination, you are waiving the right to sue for those acts. You can still file administrative complaints with the EEOC, but the employer is trying to prohibit you from collecting any money from those complaints by virtue of the language under subparagraph (2). Not sure that will work for them either, but they are muddying up the legal waters.

Finally, you also didn't answer my question on how long they gave you to think about the severance agreement and whether or not they advised you to seek counsel. That is important to consider since the answers may affect whether or not the agreement as a whole would even be enforceable. If you do not enter into it "knowingly and willingly" then it isn't enforceable. So, if they put a short time pressure on you or don't advise you to seek legal counsel, then it may not satisfy the law.

If I were you, I would go forward with your plans to sit down with a local attorney and discuss all the issues I raised here to hash out what your best course of action is.

 

Marsha411JD
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 20,556
Experience: Licensed Attorney with 29 yrs. exp in Employment Law
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