Release generally covers claims arising from anything that happened during or before the signing of the separation agreement. Declassified claims are generally broad and cite any form of claim or liability resulting from conduct that occurred up to the date of signature. Workers can demand “reciprocal” authorization, so the employer is also prohibited from asserting his rights against the worker. Mutual authorization is particularly important when the employer has raised the possibility of filing a complaint against the worker for breach of contract or violation of the workplace. Employers may also try to include in the separation agreement provisions that provide additional protection with respect to restrictive agreements, including the language that: Unfortunately, the release of future claims is not applicable. Therefore, if the employee signs the termination a week before her last day and is then sexually harassed (for example) during the last week of employment, her exemption agreement would not prevent her from taking legal action. For example, the Eighth Circuit Court of Appeals (which includes Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota) recently rescinded a waiver agreement because it was confusing to the employee. As the court suggested, the OWBPA requires that an unblock be drafted in clear and clear terms – not legally! In this case, the worker attempted to obtain clarification from the employer`s lawyer on two apparently contradictory provisions – authorization and the obligation not to pursue the provisions. However, the lawyer was “not comfortable” to see clearly. Thus, the court rescinded the authorization and stated, “It seems axiomatic that while an agreement needs to be clarified, it is not written in a manner calculated in such a way as to be understood.” In light of this decision, employers should carefully consider whether their termination and severance agreements should still contain the agreement known not to bring legal action. In another recent decision, the Tenth Circuit Court of Appeals (which includes Oklahoma, Kansas, New Mexico, Colorado, Wyoming and Utah, as well as parts of Yellowstone National Park extending to Montana and Idaho) struck down the declassifications signed by the applicants after a reduction in force in which the employers failed to comply with the OWBPA`s requirements for dismissals from the technical group.
In particular, the employer did not disclose the correct “unit of decision” in the declassification agreements and did not list all the “claim factors” used to determine who is subject to the termination program. Again, the publications “did not meet the strict and unlimited requirements of the OWBPA” and were therefore considered legally ineffective. Separation agreements usually provide for payments going beyond what the employer already owes to the outgoing worker. This compensation is called “severance pay” and can be issued in a lump sum or for weeks or months. Some separation agreements define the rights released as arising from behaviour that took place either in the workplace or outside the workplace, whether or not it relates to employment. . . .