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Top Ten Developments in Employment Law for HR Professionals in Virginia — #8

Published by on January 6, 2010

The top ten developments in employment law for HR professionals in Virginia for 2009 continues, in no particular order.  Number 8:  new EEOC document on waivers and releases of employee claims.  More after the break. In July, the EEOC published an informational document entitled “Understanding Waivers of Discrimination Claims in Employee Severance Agreements” to educate employees […]

The top ten developments in employment law for HR professionals in Virginia for 2009 continues, in no particular order.  Number 8:  new EEOC document on waivers and releases of employee claims.  More after the break.

In July, the EEOC published an informational document entitled “Understanding Waivers of Discrimination Claims in Employee Severance Agreements” to educate employees on waiver provisions that may be found in their separation agreements.  The document makes clear that “agreements that attempt to prevent employees from cooperating with the EEOC interfere with enforcement activities because they deprive the Commission of important testimony and evidence needed to determine whether discrimination has occurred.”  The EEOC also cautions that agreements that prohibit employees from filing EEOC charges constitute retaliation.  Although merely offering a severance agreement containing such language does not by itself constitute retaliation, employers are advised to avoid broad provisions that restrict employees’ rights to file a charge without limitations.

With regard to waivers of ADEA claims, the Older Workers Benefit Protection Act (“OWBPA”) addresses 7 requirements for these waivers, all of which must be met in order for the waiver to be valid and enforceable:

1)         Waivers must be drafted using plain language that is easily understandable by an average individual.

2)         Waivers must specifically refer to the ADEA by name.

3)         Waivers must affirmatively advise employees to consult with legal  counsel before signing the agreement.

4)         Waivers must provide employees with 21 days to accept the offer.

5)         Waivers must provide a 7 day revocation period during which the employee can revoke his or her acceptance.

6)         Waivers cannot include claims that arise after the date the waiver is executed.

7)         Waivers must be supported by additional and separate consideration.

With regard to waivers of FMLA claims, the final regulations clarify that such claims can be voluntarily waived by employees without court or DOL approval.  This was in response to a 2007 Fourth Circuit case that held that waivers of FMLA claims needed prior approval to be valid.  As mentioned earlier, the regulations do not allow the waiver of future claims.

As for claims under the Fair Labor Standards Act (“FLSA”), waivers of these claims require court or DOL approval.  The reasoning behind this requirement is that waiver of an employee’s right to minimum wage and overtime goes against the purpose and intent of the statute.

Employers are well-advised to avoid boilerplate language in severance agreements that might be construed to categorically limit an employee’s right to bring an EEOC charge.  Also, employers who are seeking a release from FMLA claims should make sure to include a separate provision in the severance agreement addressing the employee’s knowing and voluntary waiver of these claims.

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