by Celeste Marchand
Say you finally decide to terminate that one problem employee who is bringing the whole office down. It seems like nobody gets along with him, he's not a team player, and that bad attitude of his puts everyone on edge. Say he is also 50 years old and that sweet Miss Sunshine you are going to replace him with is only 29. How confident are you that a jury will believe that you fired him for some reason other than his age? Your answer may depend on how well you've documented the problems you had with this employee. Just saying that he didn't work out is not going to provide much of a defense to a claim of age discrimination. If you haven't documented specific problems with the employee, you may want to consider trying to negotiate a release.
A release is an agreement between an employer and its former employee where the former employee agrees not to file suit against the employer in exchange for some benefit provided by the employer. A release is useful when an employer wants to let an employee go, but feels there is some risk that the employee will sue. It is not a perfect solution though. If the release is not obtained properly, the employee may still be able to sue. Employers must also consider the possibility that, by trying to obtain a release, they will make the employee aware of his potential claims against the employer.
If you decide to try to negotiate a release with the employee, here are some things to keep in mind. The release must specifically refer to the claims the employee is giving up. So, in the example above, the release would need to specifically refer to the Age Discrimination in Employment Act. A release that says something like "any and all wrongful termination claims" won't hold up. If you're worried that the employee might make more than one legal claim, you need to specifically name them all. The release should also be written so that the employee can understand it. You won't want him to be able to claim that he didn't know what he was signing.
Another important part of a release is what is known as consideration. What are you giving the employee in exchange for him giving up his right to sue? This is where the negotiation comes in. Usually you will offer the employee some type of severance package in exchange for the release. The employee must get something of value in exchange for the release.
You also need to give the employee some time to think about signing the release. You must also give the employee seven days to change his mind after signing the release. The reason for this is to show that the employee had time to consider and understand what he was giving up by signing the release. If you don't do this, the court will probably consider the release to be invalid and will allow the person to file suit.
Consult an attorney who practices employment law to help you evaluate the potential for a lawsuit. If you decide to try for a release, your attorney can draft it for you.
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