The Dialogue – an occasional discussion between myself and a prominent employee-side attorney, Nina Pirrotti returns today after a late summer hiatus. Today’s chat focuses on employee separations and severance agreements.  Share your own tips or observations in the comments below. As always, my thanks to Nina for sharing her insights here.

Dan: Hi Nina! How was your summer? Mine was fine except I can’t stop hearing news about President Trump.

It seems to drown out everything else going on and I think I have a headache from it all. But let’s give it a try, shall we?

I know I’m often confronted with having to fashion separation and settlement agreements for employers.   

What do you find are the items in agreements that you think both sides ought to be paying attention to?

Nina: Drowning in Trump-related noise.  The image is horrifying!  My husband and I were chatting the other day about an old Saturday night live weekend update skit.  As we recall it (it was decades ago), the news media was focused on other events when all of a sudden the character playing Kim Jong Un pops into the screen, holds both arms out and complains:  “What do I have to do to get attention around here?!” 

In the age of Trump that glib remark becomes bone-chilling. 

The art of crafting a fair and balanced settlement agreement isn’t the most riveting of topics in our world but it is among the most important.  

One key strategy I use in evaluating them is to put myself in the position of the employer to ensure I understand company’s (reasonable) priorities. 

Clearly the company seeks to contain the dispute itself, keep the fact that it is settling it confidential, and do everything possible to obtain closure.    If the settlement terms go beyond meeting those priorities, a red flag goes up for me and I scrutinize those terms closely.  

In light of the company’s priorities in containing the dispute and keeping it confidential, I expect to see a confidentiality provision, limiting the disclosure of the settlement agreement to those on a need to know basis (typically immediate family members, financial/tax advisor and lawyer). 

I am also not surprised by a non-disparagement provision which prevents the employee from spreading ill will about the former employer. 

Since I generally advise my client that it rarely reflects well on an employee to speak negatively about his/her former employer (no matter how justified the employee might be in doing so) I usually do not oppose such provisions. 

I will often, of course, make them mutual so that key employees at the company also commit to not disparaging my client. 

In light of the company’s priority in seeking closure, I do not have a one-size fits all response to no re-hire provision.  I understand the company’s concern that should the employee who has settled claims for discrimination apply for a position down the road and the company (for legitimate reasons) declines to hire that employee, it nonetheless remains exposed to a potential retaliation lawsuit by the employee. 

No re-rehire provisions in certain situations can be appropriate but only if they are narrowly tailored to the company itself.  Alarm bells go off for me, therefore, if the employer is large and has numerous affiliates and subsidiaries and the employer insists on including them within the scope of the no-rehire provision. 

In such cases, no-rehire provisions can be tantamount to mini-restrictive covenants and, where they hamper my client’s ability to find comparable work, I will reject them as untenable. 

Speaking of restrictive covenant  provisions, it irks me to no end when an employer tries to slip one into a settlement agreement where the employer was not bound by one during the course of his/her employment!   Such provisions are generally a non-starter for me, absent considerable additional compensation for them. 

Finally, as we discussed in an interview you conducted with me many years ago, I do not abide by liquidated damages provisions. 

If a court determines that my client has breached the agreement, even if that breach is deemed a material one, the employer should still bear the burden of proving that it has been damaged and, to a reasonable degree of certainty, the monetary amount of that damage. 

What are your thoughts, Dan?   Have I articulated the company’s main priorities well?  Are there others I am missing that I should consider the next go-round?   Do tell and I promise to listen with an open mind!

Dan: Well, one day we could talk about Trump-related employment litigation, if you’d like to really talk more about Trump.

You’ve hit on some of the highlights from an employer perspective. When crafting one for an employer, I will let you in on a “secret” – we have a template.

I know — probably not a big surprise to you since our firms have negotiated enough of them.

As a result, I find that agreements at this point are sometimes more of finessing around the edges, rather than major re-writes.

The problem I see is that there are some employers who are using a form separation agreement handed down to them years ago, without understanding what’s in them.

First off, the agreements — regardless of whether you’re trying to comply with federal law or not — should really be written in “plain English”.

Get rid of the “Whereas” clauses.

Use bold language or simply to understand provisions.

And try not to have it be 15 pages.

Second, the agreements should contain: a) a release of all state and federal claims (and local ones if you’re in places like New York City); b) confidentiality (and if it needs to be mutual, so be it); c) non-disparagement (same).  There’s more of course, but start with the basics.

Third, employers should think about provisions that may actually be helpful: a) What are you going to do about references? Is it “name, rank, serial number” or something more? b) Do you want an arbitration provision for any breach of the separation agreement?

Neither is typically a high priority but taking care of some of these details are important.

A few employers are trying to get the “best” deal and negotiate strongly but I find most employers just want to move on; the termination was probably not something that they wanted to do anyways and putting some distance between the employee and the company is probably a good thing for the business ultimately.

Since you’re not finding separation agreements all that exciting, what about how employers handle the termination or termination meeting itself? I’m sure you’ve heard some stories from clients.

Nina: Wow – you hit the jackpot with that question!   

I was once asked at an ABA conference at which I spoke what was one step management lawyers could take to maximize the chances that a departing employee won’t seek out the counsel of someone like yours truly. 

My answer?  Treat them like human beings when you terminate them.   

Don’t do what one Fortune 500 company did to one of my clients which was to call her as she lay in a hospital bed with her infant daughter who had been born earlier that day and inform her that she need not return to work because her job had been eliminated.

Time and again prospective clients had told me that they would have gone quietly into the good night had their employers treated them with a modicum of respect during the termination process. 

I recently settled a case involving a woman in her mid-60s who had worked for the same company for 20 years and proven time and again that she would do ANYTHING for that company and, indeed, had worn a number of hats over the years, shedding one and donning another as the company’s needs shifted.  In her 20th year, a new CEO was hired and you can guess what happened next.  He terminated her and replaced her with a brand new hire, decades younger, who my client had helped train.   

Doesn’t sound kosher right, but that is not the worst part! 

It was the WAY the company terminated her that prompted this lovely, meek, non-confrontational woman to summon up the courage to pick up the phone and call me. 

Her termination consisted of a three minute meeting in which the CEO informed her she was no longer needed and handed her a severance agreement that provided her with two measly weeks’ pay. 

She was literally sobbing as she signed it then and there after which she was immediately escorted out the door.   She contacted me weeks after she signed her agreement.  Too bad, so sad, right?  Wrong. 

The employer neglected to include in her severance agreement language required by the Older Worker Benefits Protection Act (OWBPA), including a 21-day period to consider the agreement and a seven-day revocation period.  She was able to keep her paltry two weeks and I got her many months more on top of that!   

There are so many morals to that story, the least of which is that severance agreements for employees over 40 should comply with the OWBPA.   Employers should be expressing their gratitude to terminated employees who have proven their devotion to the company by providing them with severance that sends the message that they valued that devotion.  

There other ways to go that extra mile to treat such employees with dignity.   Think about how you would want to be treated if you were undergoing one of the worst days of your life and act accordingly.  Thank them for their service, tell them how sorry you are, assure them that you will do everything in your power to facilitate their transition, allow them to say goodbye to their colleagues, hell, even offer to throw them a farewell gathering.  The possibilities are endless.  Sometimes we lawyers get in our own way. 

Dan, I know none of the clients who have had the benefit of your wisdom prior to terminating an employee would succumb to such pitfalls.  But what do you do when you have to clean up after the fact?

Dan: You’ve raised a good question, but I want to address something you said first. 

You said: “Employers should be expressing their gratitude to terminated employees who have proven their devotion to the company by providing them with severance that sends the message that they valued that devotion.”  

It’s that phrase that I think gets to the heart of the issues with severance in 2017. 

When I first started practicing (a few years ago, ahem), there were still many companies that offered severance without ANY release because that just seemed “the right thing to do.”

After all, there was still a bit of an unspoken contract that employers would take care of employees.

Think back to the “Mother Aetna” description of the insurance company.  But as the recessions took their toll and employee mobility took root, that social contract has definitely been frayed over the years.  In part too is the rise of employment litigation. 

Now each employer has to worry: Is THIS going to be the employment termination that leads to a lawsuit?

 I can’t even remember the last time that an employer offered severance without also demanding the employee sign a release. 

In other words, the idea of severance as “gratitude” and “thanks”, has now been replaced with much more of a quid pro quo. 

For employers, the thought ii: If we give you this severance, please don’t sue us. 

And yet for employees, some of them still remember the days when severance was just something companies did without worrying about the lawsuit. And so when the employer demands the release, some employees take offense to it, not realizing that times have changed. 

As a result, I have also seen employers trying to offer less and less; the notion of one week of severance per year of service (with caps) is still strong, but not universal. 

As to being the fixer – yes, sometimes it happens.  The lack of OWBPA provisions is really something that just shouldn’t happen anymore. 

But it’s more that employers go ahead with the termination without thinking about what comes next.  And some employers are moving so fast, that the details such as having two people in the termination meting and having COBRA information available, get lost in the shuffle.

I don’t know of a single employer that has enjoyed firing an employee.  

Even when they catch an employee red-handed, many employers are aware of the consequences that may flow for the employee from a firing. The employee may have a tough time finding a new job, for example. 

But it strikes me that a small subset of terminated employees are LOOKING to bring suit or a payday instead of looking forward to a new time in their life. 

Obviously sometimes past discrimination has to be examined, but what do you think makes employees sue their employers instead of signing severance agreements that are presented to them?

Nina: I think that employer conduct that rises to the level of actionable discrimination and/or retaliation is alive and well, unfortunately. 

The only up side of all of this is that I get to keep my day job, which I love! 

Of course there are those (“small subset” would accurately describe them) who seek to avoid accountability and are looking for a quick pay out of claims. 

Virtually all of those individuals never make it to our front door. 

I say “virtually” because we are human, after all, and one or two may sneak through the cracks in that door. 

But then we have competent lawyers like you for whom we have great respect who (very politely) convince us – – with facts – – that we are being misled. 

That is why I believe that the only situations in which early negotiations are successful are those in which both sides fight their natural inclinations to hold their cards close to their chests and actually share meaningful information from the get go.  

But how to conduct negotiations effectively is a topic worthy of its own separate dialogue, no?

Dan: I think so. Now, I have to save whatever energy I have left to stay up late to watch playoff baseball with the Yankees. Hopefully, it’s a long October filled with lots of late nights and distractions.  Until next time, Nina!  

So, a couple of months back, I talked about how separation agreements for small employers might not be covered by the federal law that covers such agreements.

After all, since the Age Discrimination in Employment Act only applied to employers that have 20 or more employees, the requirements for a “knowing and voluntary waiver” of claims under separation agreements only applied to those larger employers.

Because this is a federal law, it applies in Connecticut though states are free to craft additional laws if they wish.

Recently, though, I’ve heard of an employee spouting off about “advice” he received that  Connecticut state law had the same requirements as federal law did.

And since Connecticut’s anti-discrimination laws apply to employers of 3 or more employees, the employee argued that he should be provided with 21 days to consider the agreement.

When I heard this, I scratched my, well, proverbial head about this one.  Did I miss something?

The short answer is no, I didn’t miss something.  Connecticut law doesn’t say this.  You can see for yourself in Conn. Gen. Stat. 46a-60.

But how did the employee get such advice?

The first answer may be the simplest one: The attorney he spoke with doesn’t routinely practice in the area.  Sometimes, well-meaning lawyers just overstep their knowledge basis.

Another obvious answer is that the employee’s so-called advice was from “Attorney” Google.  Google is really good at finding things that might apply to your situation — not as good yet at telling you whether it actually applies to your situation.

And if you Google a topic like this, you might actually find a state court decision that looks — at first blush — like it might be on point.

State courts often use the following language in their decisions:

Although this case is based solely on Connecticut law, we review federal precedent concerning employment discrimination for guidance in enforcing our own antidiscrimination statutes.

What does THAT mean?

Typically for the same types of disparate treatment claims for, say, gender discrimination claims, courts in Connecticut don’t have as much as experience as federal law. So where the law is the SAME, it makes sense to look to federal laws that are similar.

The problem in the age discrimination statute context is that Connecticut law is DIFFERENT than federal law at times. There is no state equivalent. So looking to federal law makes no sense whatsoever.  And sure enough a quick search of Google Scholar reveals NO state law case applying that federal law to a review of separation agreements.

So how ARE separation agreements to be reviewed in Connecticut? In essence, you would most likely look at the agreement under state laws dealing with contracts.  Typically, this is also done through the “common law’ – that is precedent from the courts.  And Connecticut courts haven’t said much about separation agreements.

Employers are sometimes caught in the middle of receiving advice from their counsel (hopefully correct) and what the employee believes is true whether through an attorney or otherwise.  Employers should understand the misinformation that exists out there and, when confronted with these issues, try to explain them to employees.

Otherwise, a seemingly innocuous situation could turn much more stressful when the employee thinks (and worse, is being told) that the employer is violating a non-existent state law.

There are many confusing aspects of employment law — not the least of which is that certain laws only apply to employers of a certain size.

For example, the federal age discrimination law, ADEA, only applies to a business if it has 20 or more employees who worked for the company for at least twenty calendar weeks (in this year or last).

Now in some instances, that might not matter in Connecticut because Connecticut’s general anti-discrimination laws generally (with exception) apply to employers of three or more employees.

Why does this matter? Because there are some aspects of this federal law (and others) that don’t apply to small employers.

One prime example of this is the requirement that employers comply with the Older Worker Benefit Protection Act, which is part of ADEA.  This law requires separation agreements to have certain conditions, including 21 days for the employee to consider the release.  But employers who are under 20 employees are not covered by ADEA and thus don’t need to follow this particular legal requirement (even if it may still be a good idea).

Another area that this comes up is in FMLA coverage.  Most people are aware that FMLA only applies to employers who have 50 or more employees.

But there is a secondary requirement that is often overlooked — that the employee asking for such leave be located in an office that itself has 50 or more employees within a 75 mile radius.

By way of example: Suppose an employer has 1000 employees, but only 25 located in Connecticut and there are no offices within 75 miles.  An employee has a serious health condition; is the employee eligible for FMLA leave?

The answer is no.  At least 50 employees must work for the employer within a 75 mile radius.

Practical Law had a good summary of this:  

Employers should analyze whether the employee meets the 50 employee and 75 miles requirement when the employee gives notice that leave is needed. An employee who is deemed eligible for FMLA leave continues to be eligible for the next 12 months even if the number of employees drops below 50. To determine whether an employee is eligible, the distance is based on:the employee’s physical work site using surface miles over public streets, roads, highways and waterways by the shortest route; or if an employee has no fixed work site, the employee’s work site is his home base, the site to which he reports or the site from which his work is assigned.

Now, nothing prevents an employer from giving all of its employees FMLA-leave, but they’re not required to.

Thus, employers who are in various locations should be sure to look at all the employer-size rules to figure how where they are covered and how. Because size really does matter.

franklinUp on Fortune magazine’s column “Practically Speaking” is the following question:

Frank has been with us for more than 20 years. He works in the warehouse and has done a good job for us. I like him. But, to be honest, for the work he performs I could easily replace him someone younger and … cheaper. Would it be wrong to let him go?

Well, what a loaded question.  The advice column side-steps an important issue and gets into a discussion regarding overhead, benefits, etc.

If you follow this path blindly, you may walk right into a lawsuit.

Why? Because discrimination laws prohibit discrimination on the basis of age and you’re already acknowledging that you want someone “younger” — even if salary considerations may also be involved.

In fact, there have already been cases that talk about similar scenarios. In one case, a supervisor told an employee that he was “looking for younger single people” and that, as a consequence, the employee “wouldn’t be happy [at the company] in the future.”  In other cases, comments about replacing workers with “younger, cheaper” ones can also be used to support an age discrimination claim.

Even without the comment, a replacement by an employer of an employee with someone significantly younger can give rise to an inference of age discrimination.

So, case closed?

Well, maybe in this instance, since the employer already has this “younger” notion embedded in its decision-making process.

But suppose the employer is looking to cut costs and wants to replace higher salaried workers with cheaper ones: Can it do that?

Well, after the court’s decision in Gross (which I discussed way back here): Maybe.  The court there held that age must be the decisive factor in the employer’s decision and that “but for” the employee’s age, the employer would not have made the same decision.

Thus, an employer who believes it can get the same work done by an someone at a lower salary may sometimes survive an age discrimination claim — so long as age doesn’t factor into the decision.  But before you do this, be sure to consult with legal counsel as it’s a minefield to navigate.  This is particularly true in Connecticut where it remains to be seen how closely the courts will truly follow federal law in this instance.

And one more note:  Terminating employees to avoid further pension obligations or other benefits is likely illegal in many instances under federal law.  The Older Workers Benefit Protection Act (OWBPA), which we often think of as only applying to separation agreements, also made it illegal for employers to use an employee’s age as the basis for discrimination in benefits, and to target older workers for their staff cutting programs on the basis that benefits were too costly.

Cost considerations are certainly important for companies to consider. But tying those considerations to age is a step too far under the law.   Be sure to understand the distinctions. And try not to blindly follow advice columns (or even blog posts!); each circumstance is different and getting appropriate legal advice in this instance really is critical.

As I keep trying new things for the blog, today I introduce an “explainer” video.  You’ve seen them before; it’s a short movie explaining a subject.

Today’s topic is one I’ve touched on from time to time — separation agreements that comply with the Older Workers Benefit Protection Act.

Let me know what you think of videos like this.

Last week, a story caught my eye and the attention of some of my colleagues.  As reported first by Bloomberg BNA, IBM has stopped providing the comparison information that is typically required in separation agreements for older workers under the Older Workers Benefit Protection Act.

You may be wondering how that is possible.  Robin Shea, of Employment & Labor Insider beat me to the punch with a very good recap that I don’t think I can improve upon.  So I’ll cite two paragraphs below:

As you know, when an employer has a “group termination” — usually, a reduction in force, but a “group” can be as few as two people – it is required to disclose the job titles and ages of the individuals in the “decisional unit,” which means the working unit from which the decisions were made. If the employer doesn’t make the disclosures (and get ‘em right), then it can’t get a valid waiver of age discrimination claims under the federal Age Discrimination in Employment Act although the waiver may be valid in other respects …..

But how can IBM do this?  They aren’t requiring employees to give up their age discrimination claims, that’s how. They’re just requiring them to use arbitration instead of the court system. Which I think is legal, based on Gilmer v. Interstate/Johnson Lane, a Supreme Court decision from the 1990′s.

In essence, IBM is using a separation agreement with two sets of rules: For all claims except age discrimination, employees must release IBM. For age discrimination claims, IBM has said that employees do not have to release IBM but must take any such claims to arbitration.

Will it work? That remains to be seen. It has yet to be challenged in court or the EEOC.

But most employers are not IBM and do not have the resources to take this strategy.

So I suspect that many employers will simply follow the path of least resistance and provide the comparison information under the OWBPA.  If done right, then employers will get the benefit of an additional release without the hassle of arbitration or the added cost.   It’s worked for many employers for over 20 years and, IBM’s strategy notwithstanding, it’s probably not worth changing gears now.

There are many good free resources for additional background on this topic. One that I would suggest was produced by the ABA in 2008 and is still highly relevant today.

Suppose you have to terminate an employee who is over the age of 40 and you decide to offer that employee a separation agreement.

(I’ve previously covered the “standard” provisions in an agreement here and discussed a 2009 EEOC Guidance on the subject here.)

You already know (right?) that releases for employees over 40 need to comply with the Older Workers Benefit Protection Act.  Among the requirements: that you provide those terminated employees with at least 21 days (or 45 days in the case of a reduction in force) to consider the agreement.

But suppose the employee comes back to you and negotiates for some additional severance or some significant change to the agreement and you, as the company, agree to make that change.   What happens to the 21 day (or 45 day) period?

Interestingly, the EEOC has addressed this in a little known regulation.  Under the EEOC’s view, a “material change” to the agreement restarts the consideration period; thus it’s the employer’s final offer that matters in figuring out when the 21 day (or 45 day) period runs.

The regulation (29 C.F.R. § 1655.22(e)(4)), states the following:

The 21 or 45 day period runs from the date of the employer’s final offer. Material changes to the final offer restart the running of the 21 or 45 day period; changes made to the final offer that are not material do not restart the running of the 21 or 45 day period. The parties may agree that changes, whether material or immaterial, do not restart the running of the 21 or 45 day period.

So, note the last sentence: the employer and employee can agree to a shortened period of time.

The result for employers? Consider putting into your agreements a provision that if there have changes to the agreement (material or immaterial), the employee agrees that this does not restart the consideration period.

Otherwise, you may find yourself on the other side of an argument that the release was not OWBPA-compliant.

Throw out the release?

The situation is a common one.

  • Employer terminates the employment of an employee.
  • Employer provides a severance agreement with its signature already affixed. 
  • Employee signs it and returns the agreement to the employer.
  • Employer, likely reviewing just the signature, pays the severance.

But here’s where things get interesting. Employee then sues the employer for discrimination. Employer says, “wait a minute”, the employee already signed a release.

Except the employee has the equivalent of baseball’s hidden ball trick up her sleeve.

Before the employee signed the agreement, she re-typed the entire page with the general release using the same font and margins. (You can download the agreement here.)

And, most importantly, she changed the word “including” (when referring to specific claims she was releasing) to “excluding” (thereby trying to exclude the laundry list of claims that typically follows an “including” clause).

She signed the agreement and returned it to the employer.  (There is some dispute as to whether the employee attached a yellow sticky note to the change.)

Those facts are described in a remarkable new case out of a federal district court and were first reported in the Employment Law Daily briefing

The employer argued that the employee, under either version of the release, had settled “all claims” against the employer. The court raised its own issue suggesing that the waiver was not knowing or voluntary — at least at this stage of the litigation.

Here, by changing the word “including” to “excluding” prior to the list of claims covered by the Chanel Separation and Release Agreement before signing the agreement and returning it to Defendant, Plaintiff manifested an intent to preserve her right to file a discrimination claim. Thus, Plaintiff did not knowingly, willfully, and voluntarily waive her right to file a discrimination claim, regardless of whether the Chanel Separation Release Agreement, Plaintiff’s Release, or neither represents the agreement of the parties.

The case will proceed with discovery now and it remains to be seen whether there will be additional facts gleaned during the case that could change the court’s analysis.

Regardless, the decision is a stark reminder to employers that things may not always be what they seem and that, unfortunately, it is up to the employer to police the agreements.  

When a severance agreement is returned to the employer, the case now emphasizes a need for employers to make sure that what was signed was actually the version that was sent to the employer in the first place.  

I tend to disagree with the court’s decision that a party should profit from such trickery but the court — at least in this case — refused to come down harshly on the employee.

Ultimately, it’s a scary decision for employers — particularly those that may process dozens of such agreements during a reduction in force.

The title of this post is, of course, a bit misleading.  Any lawyer will tell you that each employment case you may have is unique and that any settlement must take into account the facts and circumstances of the particular case.

All true.  And, if your company is negotiating a settlement, you ought to have your agreement reviewed by an attorney.

But for those wondering what provisions “most” settlement agreements contain, I thought it would be helpful to outline a few from an employer perspective.

  • Consideration/Payment — This paragraph describes what the employer is typically paying in the settlement and whether the paymen
    What's on YOUR checklist?

    t is to be made in a lump-sum or over time.

  • Release — Probably the single most important part of the agreement. The employee is typically waiving all of his or her rights in this paragraph.
  • Covenant Not to Sue – In this paragraph, the employee agrees not to sue the employer in the future.
  • Stipulation of Dismissal – Of course, since there is a settlement, if the matter is pending in court, the employee agrees that the matter will be dismissed as settled (various courts term such a dismissal differently).
  • No Admission of Liability – Each party agrees that the agreement is not an admission of liability but that the agreement merely represents a compromise.
  • OWBPA-compliant provisions — If the employee is over the age of 40, the Older Workers Benefit Protection Act may come into play. If so, provisions relating to OWBPA (covered in this prior post) may need to be added.
  • Confidentiality — Nearly all of the settlement agreements nowadays contain some type of provision that calls for the settlement to remain confidential (with some limited exceptions for attorneys, accountants and those within the company with a business need to know).
  • Non-disparagement — As with the confidentiality clause, often times employers (and employees) insist that the other party cease from saying negative things about the other.
  • No Rehire – If the employer is settling a dispute from a termination, typically, the employer does not want to have to rehire the employee. This provision provides that the employee agrees that he or she will not seek re-employment and waives any right to be rehired.

This list is far from comprehensive but is a starting point for employers to consider.  There are other standard provisions (governing law, severability, etc) that are also routinely added too.

Although it is a bit dated, there’s still a great checklist of all such provisions in employment settlement agreements that you may also want for your library prepared by Attorney Robert Fitzpatrick. It remains among the more comprehensive lists I’ve seen out there on the subject. It doesn’t have some of the more recent developments (such as Section 409A regarding executive compensation), but it’s a good primer on the subject.

(And another  reminder, please be sure to consult with your legal adviser regarding the drafting or reviewing of a settlement agreement that will fit with your unique legal circumstances.)

As this blog has grown over the last few years, I’ve noticed that some readers have missed earlier articles on relevant topics.  Indeed, sometimes they ask why I haven’t written about it before when, in fact, I have. 

Rather than write the same post again, I thought it would be useful, from time to time, to look back at some of those posts for guidance.

Back in May 2008, I discussed how employers should develop a checklist for their separation agreements.  Importantly, there is a law called the Older Workers Benefit Protection Act that is still unfamiliar to many employers.  Check it out and make sure your agreements meet the requirements.