Ensuring Effective Employee Release Agreements: Best Practices and Trends in 2015 and Beyond
Employees may leave a company for many reasons including, moving to a new job, closure of a branch or company facility, retirement, lay-off, resignation, or termination; among others. Termination generally is voluntary or involuntary. In most states, unlike terminated employees, those who leave voluntarily are not eligible for unemployment benefits. However, firing an employee may have additional consequences for the employer.
The Equal Employment Opportunity Commission (EEOC) and the National Labor Relations Board (NLRB) increasingly are challenging provisions in employee separation and release agreements. Release of claims, non-disparagement clauses, confidentiality agreements, covenants not to sue, and no re-hiring provisions are coming under stricter scrutiny.
Hence, developing effective policies and procedures to ensure compliance with federal and state laws relating to severance, firing, and termination of employees is becoming more important than ever before. All companies need to understand the difference between a voluntary and involuntary termination. Ideally, a carefully worded severance agreement compliant with state and federal law will help to assuage departing employees from litigating. Finally, Release Agreements can be useful for members of groups that are protected by anti-discrimination laws and those who have filed a workers’ compensation claim after injury while employed. However, severance and release agreements should be developed in cooperation with an employment attorney.
In a two hour LIVE Webcast, a panel of thought leaders and practitioners assembled by The Knowledge Group will discuss the importance of Ensuring Effective Employee Release and Settlement Agreements. In addition, the panel of speakers will discuss best practices and compliance risks to help companies avoid the pitfalls of litigation by departed employees.
Key topics include:
- Effective Release Agreements: Federal & State Laws
- Employer's Obligations and Liability
- Recent Actions Against Employers
- Equal Employment Opportunity Commission (EEOC)
- National Labor Relations Board (NLRB)
- EEOC's Duties and Responsibilities
- Voluntarily vs. Involuntarily Resignation
- Employees Rights for Possible Lawsuits
- Litigation Risks
- Developing Strong Severance & Release Agreements
- Latest Regulatory Updates
Douglas R. Burtch, Firm Managing Attorney
Macaulay & Burtch, P.C.
- What claims can be released by private contract. Generally. Some state-specific laws (won’t go into each state’s state-specific requirements).
- What claims can’t be released by private contract. Generally. Some state-specific laws (won’t go into each state’s state-specific requirements).
- Whether voluntary or involuntary termination, always best to obtain singed release from departing employee. General contents of effective release. Some key specific provisions:
- Consider restrictive covenants. Reaffirm covenants currently in place; replace covenants currently in place with more specific, applicable ones; include restrictive covenants for first time.
- Cooperation. Require employee to reasonably cooperate with company after separation for a period of time on work relating to employee’s employment. Contractually binds employee to help with smooth transition of company clients and business relationships.
- Non-disparagement as material term of agreement. Protects company goodwill, reputation, and image, especially on the internet and social media.
- Governing law, venue, waiver of jury trial, attorney’s fees, no admission of liability.
- Define released party broadly to include parents, affiliates, subsidiaries, officers, directors, employees.
- Clawback separation pay for employee breach of agreement.
- Timing of the release. When to present to employee. How to present it. Consideration/revocation periods.
Dean J. Schaner, Partner
Haynes and Boone, LLP
- Releases in group layoffs. General WARN and OWBPA notices.
Who Should Attend:
- Employee Relations Professionals
- Employment and Labor Legal Counsel
- Human Resource Managers
- Human Resource Personnel
- Other Related/Interested Professionals and Organizations
Douglas R. Burtch has been managing attorney for the Richmond, Virginia law firm of Macaulay & Burtch. Douglas represents businesses of all sizes, nonprofits, executives and professionals in employment and labor matters. Douglas’ practice consists of both counseling and litigation. He also represents clients in health care, administrative and school law issues, and in business disputes. Douglas is rated “AV Preeminent” by Martindale-Hubbell, the highest peer-review rating. He is listed in “Best Lawyers in America” by U.S. News, has been named “Legal Elite” by Virginia Business magazine, and has been named a Virginia “Rising Star” by Super Lawyers magazine since 2010, all in the employment and labor law category. Douglas is an active member of numerous bar associations and a speaker on issues affecting the workplace.
Douglas R. Burtch has been managing attorney for the Richmond, Virginia law firm of Macaulay & Burtch. Douglas represents businesses …
Dean Schaner, founder of the Houston Labor and Employment Practice Group, has exclusively practiced employment and labor litigation for more than 26 years, representing employers in all aspects of unfair competition, discrimination, retaliation, whistleblower, ERISA, wrongful termination, and tort/contract claims arising out of the employment relationship. Dean has tried a wide variety of cases in the federal and state courts, including the successful defense of an energy company in a class action case in which plaintiffs sought $30 million in damages. He is certified by the Texas Board of Legal Specialization as a labor and employment law specialist. Additionally, as a member of the Social Media Practice Group, Dean advises clients on matters regarding social media and the risks and implications it may have in the labor and employment arena. Dean received his B.A from Texas Tech University in 1984 and his J.D. from Creighton University School of Law in 1987.
Dean Schaner, founder of the Houston Labor and Employment Practice Group, has exclusively practiced employment and labor litigation for more …
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About Macaulay & Burtch, P.C.
Macaulay & Burtch is a Richmond, Virginia law firm with a national reputation. The Firm is listed among the “Best Law Firms in America” by U.S. News and is rated “AV Preeminent” by its peers, reflecting Martindale-Hubbell's highest level of professional excellence. The firm is known for its work in employment and labor law, government affairs, health care, administrative and school law, as well as handling business disputes. For more information, call 804.649.4009 or visit www.macbur.com
About Haynes and Boone, LLP
Haynes and Boone, LLP is a full service law firm with a national presence and an international reach. With more than 550 lawyers located in Texas, New York, California, Colorado, Washington, D.C., Shanghai and Mexico City, we are trusted advisors, zealous advocates and creative strategists. We have a client-first philosophy, defining our success as providing exceptional value and practical business-minded solutions to our clients and innovative contributions to their businesses. Many of our extraordinary practices and lawyers are regularly recognized in Chambers (USA, Latin America and Global), BTI Client Service and Super Lawyers, among others.
Every law firm believes culture is an important component of success. Haynes and Boone’s culture is truly unique and provides our firm with strength and stability. Our culture is defined by our collaborative work environment and by putting our clients’ interests first. Our long-term view supports investing in the future of our firm and our lawyers strive to be an outstanding professional services institution.
Although we often emphasize the “internal” aspects of our culture, the linchpin is outstanding client service and recognizing that our internal operations must support our clients’ best interests. To further our goals, we focus on recruiting self-motivated lawyers with strong work ethic and encourage communication and accountability. We continually focus on developing cutting-edge practices to create a working environment that provides the most interesting and challenging work experiences.
We carry with us the progressive, entrepreneurial spirit that has always animated our firm. We’ve always worked differently than other firms. We are committed to remaining forward-thinking and preparing for the dynamically changing world of business law.
We serve businesses around the world, including 20 percent of Fortune 500 companies, in a wide variety of industries, including energy, technology, aviation, transportation and healthcare.