Terminating the Employment Relationship

explicitly advise the employees to consult an attorney. After accepting the VERP and resigning, a group of former employees brought suit alleging, in part, that the release was not knowing and voluntary. The Court held that the release did not sufficiently advise employees to consult an attorney prior to signing the release. A waiver is not knowing and voluntary unless the individual is advised in writing to consult with an attorney prior to executing the agreement.

ii. ADEA Waivers for Group Exit Incentives If an ADEA waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees (e.g., an early retirement incentive), the requirements listed above change slightly. Rather than having only 21 days within which to consider the agreement, an individual waiving his or ADEA rights or claims in a separation agreement must have a period of at least 45 days. In addition, the employer must, in plain language, clearly explain to the individual or individuals within the group the eligibility factors for the program and any time limits applicable to the program. The employer must also clearly explain the job titles and ages of all individuals eligible or selected for the program, and the ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the program. i. Compromise and Release The Labor Code and the Workers’ Compensation Appeals Board (“WCAB”) rules provide the exclusive procedure for settlement of workers’ compensation claims. Under that procedure, although parties may resolve workers’ compensation issues by settlement, the settlement must be reviewed and approved by the WCAB. A settlement will not be approved unless the WCAB determines that the compensation is adequate under the circumstances. Under the WCAB’s rules, agreements which provide for payment of less than the full amount of compensation due or to become due, and which undertake to release an employer from all future liability, will be approved only where it appears that a reasonable doubt exists as to the rights of the parties or that approval is in the best interest of the parties. No agreement can relieve an employer of liability for vocational rehabilitation benefits unless the WCAB makes a finding that there is a good faith issue, which, if resolved against the employee, would defeat the employee’s right to all workers’ compensation. ii. Form An agreement resolving or releasing a workers’ compensation claim must be in writing, signed, attested and notarized, and must provide any information as the WCAB deems appropriate. The WCAB provides official forms, which should be incorporated into or attached to an agreement in which an employee is settling or releasing a workers’ compensation claim. The form can be found online at http://www.dir.ca.gov/dwc/forms.html. e. Workers’ Compensation

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 101