Terminating the Employment Relationship

11. V OLUNTARINESS /R EPRESENTATION BY C OUNSEL Any solid, enforceable agreement demonstrates that the parties entered into the agreement knowingly and voluntarily. A party can void an agreement if he/she can prove he/she executed an agreement because of coercion or duress. To avoid such claims, the parties should include a provision stating that the parties entered into an agreement voluntarily and were represented by counsel, or that they were advised to seek the advice of legal counsel before entering into the agreement. The following is a sample voluntariness/representation by counsel clause:

The Parties represent and agree that before executing this Agreement, they have had ample opportunity to consult with counsel and to thoroughly discuss all aspects of this Agreement, that they have apprised themselves of sufficient relevant data, either through experts or through other sources of their own selection, in order that they might intelligently exercise their own judgment in deciding to execute this Agreement. The Parties agree that they have carefully read and fully understand all the provisions of this Agreement, and that they are voluntarily entering into this Agreement, without any duress or undue influence on the part of or on behalf of any party.

12. C HOICE OF F ORUM AND L AW

Settlement agreements often contain provisions that specify the law that will apply in the event a dispute regarding the agreement arises. Such provisions are known as “choice of law” provisions. For instance, parties may specify that California law (as opposed to federal law or the law of another state) applies. Such provisions are generally enforceable.

Choice of law provisions are generally acceptable. Although it rarely occurs, we recommend not consenting to the law of another jurisdiction (e.g., this agreement shall be governed and enforced under the laws of the state of New York). California public agencies should insist on having an agreement and its terms governed and enforced according to California law.

LCW Practice Advisor

Agreements may also include what are commonly referred to as “forum selection” or “venue selection” clauses. Although forum selection clauses are generally valid and enforceable, venue selection clauses are not. Case law is clear that parties may consent to jurisdiction of a court and a particular forum (e.g., a particular state court, or state rather than federal court), as long as the agreement is clear and unambiguous. Because venue selection clauses are not enforceable, a clause that specifies the particular county in which a dispute can be heard (e.g., Fresno County Superior Court) is unenforceable. 329

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 104