Thursday, June 17, 2010

6th Circuit upholds release of USERRA claim in separation agreement


We employment lawyers love severance agreements. I preach their benefits to my clients for all but the most egregious of for-cause terminations. For some amount of compensation (usually salary and benefit continuation measured in weeks or months), employers can buy off the risk of protracted and expensive litigation. The amount paid in severance will be less than the amount of fees incurred in defending litigation by multiple factors. What a nightmare, then, to have an employee who signed a severance agreement sue you anyway. That is exactly the situation in which IBM found itself in Wysocki v. Intentional Business Machine Corp. (6th Cir. 6/16/10) [pdf].

The facts of Wysocki are relatively simply. After George Wysocki returned from military service in Afghanistan, IBM refused to reinstate him to his pre-leave position. Before Wysocki could assert a violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA, the federal statute that guarantees job restoration following a military leave), IBM presented him with a separation agreement, which contained a release of claims. In exchange for $6,000 in severance pay, Wysocki promised not to sue IBM relating to his employment or termination, including claims related to his “veteran status.” Even though Wysocki signed the release, he sued anyway, claiming that USERRA prohibits releases of claims.

This case concerns two specific provisions of USERRA:

  • 4302(a), which provides that USERRA will not supersede or nullify any contract or agreement that is more beneficial than rights provided by the statute; and

  • 4302(b), which provides that USERRA will supersede any contract or agreement that reduces, limits, or eliminates any right or benefit provided by USERRA.

Wysocki argued that under 4302(b), USERRA superseded the release, because it was a contract that eliminated his rights and benefits under USERRA. The 6th Circuit disagreed:

The Release used clear and unambiguous language and involved a valuable amount of consideration. The Release stated that it covered claims based on “veteran status.” This clear and unambiguous language informed Wysocki that he was waiving his USERRA rights and, in exchange for signing the Release, Wysocki received over $6,000. Under these circumstances, it appears from the record that Wysocki understood that the Release eliminated his USERRA rights, that he signed the Release because he believed that the rights provided in the Release were more beneficial than his USERRA rights and, therefore, that the Release is exempted from the operation of § 4302(b) by § 4302(a).… We also note that Wysocki was encouraged to see a lawyer and had ample time to consider the Release before he signed it. In short, we hold that § 4302 does not invalidate the Release.

As the concurring opinion points out, the enforceability of a waiver of USERRA rights and claims under section 4302 will likely come down to an analysis of four key issues, which you should be considering when drafting an agreement that includes a release of USERRA claims:

  1. Does the release unambiguously state an intent to waive USERRA rights? The release in Wysocki used the words “veteran status.” For the sake of clarity, consider mentioning the USERRA statute directly in the release itself.

  2. Did the employee receive substantial consideration in return for executing the release?

  3. Did the employee sign the release knowingly, voluntarily, and not under duress? As added protection, encourage the employee have an attorney of his or her choice review the release pre-execution.

  4. Was the money and other consideration the employee received in exchange for signing the release more beneficial than the USERRA rights he or she waived and released? Note that the majority only required the employee to believe that the consideration was more beneficial than the USERRA rights he was waiving. For an at-will employee, however, I would argue that any consideration paid would be greater than the rights waived, since an employee can be terminated at any time and for any reason.


Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

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