Should she sue the company or waive her rights?

Parent Cafe
21

thumper, those are all good questions for which I don’t have answers. This is always the downfall when you post someone else’s problems! I haven’t heard back from her this morning; if I get more details that she’s willing to share I’ll let you all know.

The legality of the 3-day window is a good question. It makes me wonder, if she signs, if she could claim duress if she decides to sue. There was also a 7-day period to “rescind,” whatever that means.

I tend to be somewhat skeptical about any document that asks you to waive your rights to sue. My impression is that people seem to sue whether or not they’ve signed an agreement. I am always curious when I sign things just how legally binding they really are. (I think agreements that emerge from a court case – like when the Cosby accusers settled out of court in exchange for silence – are different.)

Oldfort has given great advice. I wonder if this is another example of the difference between men and women – men more often negotiate higher salaries and raises. I don’t know that it even occurred to my friend to negotiate. I think she slunked out of the office and went home to cry.

22

No, do not sign anything and hope to overturn.

Rescind means to take back.

23

Enforceaceability is enhanced if the employer has complied with the requirements of law in the separation agreement. Assume that employer’s counsel has put provisions in the document for a reason.

If she has not, she should make sure she has documentation and contemporaneous notes so that her “case” has best evidence.

24

Once your friend has collected herself, she needs to steps to make serious counter offer to the separation agreement: more severance, COBRA payments, stock and retirement benefits vesting, outplacement, script for references. All the employer can do is say no.

25

@AttorneyMother would the duration of this person’s employment be a factor in any of the things you have in post 23?

26

From my experience, the EEOC did nothing, the lawyer wanted money to represent the case. So it’s best to negotiate if your friend doesn’t have money. Not signing may get the company to negotiate.

27

These things are tricky, for a lot of reasons, and proving employment discrimination can be hard. One of the questions for your friend was there any indication of bad performance, before she was fired? For example, did she have prior years performance reviews that were good, and then suddenly this happened 3 months after she asked for ADA compliance? Were there any formal meetings to tell her of bad performance before this, or did they just fire her? I am not a lawyer, and every state is different, but speaking as a manager who has had to deal with problem employees, it isn’t easy to fire someone, we usually have a process where you have a bad review, then there are meetings with HR, detailing what needs to be improved, etc. It isn’t about right to work or not, right to work in theory allows firing for anything, but in reality depending on the state that isn’t true, and firing someone without adequate proof of why you did it can help prove a discrimination case, since if someone isn’t performing, why suddenly getting rid of them?

I would recommend your friend talk to a lawyer about it, I am not a lawyer, and my background is from management training in grad school and on the job, so it may not apply where you live. The 3 day thing is standard, when I got laid off I had a choice of getting a lump sum payout or getting it over X months, and had to make that decision.

One thing I am sure of, civic litigation and agreeing not to sue are different than filing a legal complaint. If you sign something saying you won’t sue, that doesn’t apply to filing a federal EEO complaint, if their actions violated the law , specifically anti discrimination law, then no legal agreement as far as I know can stop filing legal charges, that only (in theory) prevents someone from filing a civil suit themselves, not the government.

It is why it is worth talking to an employment lawyer and getting an understanding of the law where you are. There are states that are very hostile to these kind of worker suits, there are ones where it is easier and your actual versus real rights depend on the legal system in the state. I would tell your friend not to sign something until they had a consult with a lawyer, whatever it costs, it is worth it to know what to do.

28

I don’t see much upside in signing the agreement not to sue, unless she desperately needs the two weeks’ severance.

29

@thumper1, these are all generalities:

The first place to look would be the employee handbook, really. If the employee is already entitled to severance, then there is no additional consideration to support a release.

If the firing is for cause, then there is typically nothing. If the employer has provided notice of failure to perform and documented warnings–that type of thing–then it’s a different matter.

The ADA only applies to people who fall within the definition of “disability” IIRC.

ERISA has certain provisions that apply to termination of employment.
The DOL has requirements, if applicable.

That’s why this individual needs to consult with an employment attorney to determine if this is an actionable situation. Everything else is just speculating.