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.