Terminating the Employment Relationship

employer. As with payment provisions, the parties’ obligations and the time for performing them should be specified.

3. W AIVER & R ELEASE When resolving a dispute with an employee, an employer should always attempt to get a waiver and release of all claims from the employee or ex-employee. Ideally, an employee will waive and release all claims that exist, known or unknown, as of the date he or she executes an agreement. Such a waiver and release, if drafted correctly, provides the employer with protection from the employee executing the agreement, collecting payment or other form of consideration, and subsequently initiating another dispute against the employer based on other alleged wrongdoing. Opposing counsel is often reluctant to allow their clients to generally waive and release all claims. There are scenarios, such as resolving disciplinary disputes or where no money is being paid, where a waiver and release of all claims may not be appropriate to include in an agreement.

The key to an enforceable waiver and release is to make it clear in the agreement that the employee or ex-employee is “knowingly and voluntarily” waiving the claims.

Walls v. Central Contra Costa Transit Authority 321 Walls faced termination for misconduct, but his employer allowed him to remain employed subject to a Last Chance Agreement. The Agreement specified that if he engaged in any more misconduct he would be terminated. The Agreement required Walls to waive his right to a post-termination evidentiary appeal hearing, but did not specifically state that he waived his right to a pre-termination Skelly conference. Walls later engaged in misconduct and was terminated without an appeal. He then sued his employer, claiming that it violated his due process rights by not providing him with a Skelly conference. The Court agreed with Walls, finding that the Last Chance Agreement was silent about Walls waiving his pre-termination Skelly conference. The Court found that, because the Agreement failed to clearly address the Skelly conference, Walls did not knowingly and voluntarily waive his right to a Skelly conference.

a. General Release A general release and waiver contains broad language that prevents an employee from initiating legal action against an employer after the parties have executed an agreement, based on alleged wrongdoing that occurred before the parties executed the agreement. The following is a sample general release and waiver:

Notwithstanding the provisions of California Civil Code section 1542, Jones hereby irrevocably and unconditionally releases and forever discharges the City and the Releasees, and all persons acting by, through, under, or in concert with any of them, from

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 97