Terminating the Employment Relationship

c. Specify the Disclosure Procedure To avoid issues that may arise from disclosure of sealed documents, it is wise to include in the settlement or separation agreement the procedure by which sealed documents will be disclosed. For instance, an agreement might require an agency to provide the employee/ex-employee with notice prior to disclosing the sealed documents. Note that the following example addresses a peace officer’s personnel documents. But it can be easily tailored for an agreement involving a non-public safety employee. In the event the City receives a request to compel or an order compelling disclosure of the Separate File, the City shall promptly advise Jones in writing of such demand should he desire to institute action to oppose such a demand at his own expense and through counsel of his own selection. (Of course, it may be in the interest of the City to oppose such demand, for example, in a case where the City is defending civil litigation and a so-called “Pitchess” or “Brady” motion is made. However, the determination as to whether or not such action will be taken lies solely with the City.) The City’s notice obligation under this provision shall be deemed complied with when the City sends the demand documents by first class mail to Jones’ last known mailing address contained in City records. It shall be Jones’ responsibility to timely object to disclosure and his failure to do so shall in no way inhibit or preclude the City from complying with an order to disclose such information. It shall be Jones’ obligation to update his address information with the City. The City shall not be required to provide Jones with written notice when it receives a waiver executed by Jones, as described in section ____ above. The City shall respond to inquiries from non-law enforcement prospective employers performing background investigations with information of the dates of Jones’ employment, his separation from employment by means of resignation, and his job title, unless the inquiry is accompanied by a liability release/authorization from Jones providing for more detailed disclosures. The last paragraph of the example above is critical because it specifies what an agency must do when contacted by a potential employer. Unauthorized disclosure of sealed documents to an ex- employee’s potential employer could interfere with the ex-employee’s ability to obtain employment and lead to liability for the disclosing agency. E. T AXATION OF M ONEY P AID P URSUANT TO AN A GREEMENT A frequent hurdle to settlement and separation agreements is resolving how the parties will treat taxation of money paid to a former employee. Former employees and plaintiffs often want to treat settlement money as compensation for personal injury or emotional distress. By doing so, they believe they can avoid reporting the money as “income” for tax purposes, thereby allowing them to keep most, if not all, of the settlement money. Although treating a settlement payout as compensation for personal injury or emotional distress is acceptable in certain circumstances, it

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 117