Do you know? 10 provisions to include in severance and separation agreements

Last week, I wrote about problems in enforcing non-disparagement clauses in separation agreements. It got me to thinking—what other clauses should businesses prioritize for inclusion in separation agreements, other than the release and waiver? Here are my thoughts:

1. Consideration: A statement that the consideration provided to the employee is more than that to which the employee is otherwise entitled to employment by way of employment. Otherwise, the release and waiver could fail for the employee not receiving anything of value in exchange.
   
2. Confidentiality: A covenant as to the confidentiality of the agreement. You do not want other employees learning the terms of the separation, or that agreement was even reached. Otherwise, it could open the floodgates to other employees seeking separation packages.
   
3. Secrets: A covenant as to the confidentiality of employer’s confidential and proprietary information.
   
4. Return of Property: A covenant that all corporate property has been returned, or will be returned by a date certain.
   
5. Transition: A promise to reasonably cooperate with the employer as to the transition of job duties and responsibilities.
   
6. No-rehire: A promise that the employee will not apply for any positions in the future, and that the company is not obligated to consider him or her for future employment. Because there is some risk that a clause such as this could be viewed as retaliatory, indemnification language is not a bad idea.
   
7. No Liability: A statement that the agreement is not an admission of liability.
   
8. Governing law, Jurisdiction, and Venue: An agreement as to the law that will govern the agreement, and the jurisdiction and venue in which one must file any lawsuit regarding a breach of the agreement.
   
9. Entire Agreement: An integration clause, stating that the written agreement is the parties’ entire agreement, that no other written or oral agreements exist, and that the parties may only amend the agreement in writing signed by all.
   
10. Voluntariness: An acknowledgement that the employee read and understands the agreement, and had sufficient time and an opportunity to consult with his or her own legal advisor prior to signing the agreement.
    

What else are people including in their separation and severance agreements? Readers, did I miss any?

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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.

You deserve to be told who to vote for today … at McDonald’s

A McDonald’s franchisee in Canton finds itself in trouble this election season for including inside employees’ paychecks a pamphlet urging them to vote Republican. As if an employer’s inclusion of political literature with paychecks isn’t intimidating enough, the note stated, “If the right people are elected, we will be able to continue with raises and benefits at or above the current levels. If others are elected, we will not.”

These actions likely violate a little-known Ohio law that prohibits an employer from influencing the political opinions or votes of employees. O.R.C. § 3599.05 provides:

No employer or his agent or a corporation shall print or authorize to be printed upon any pay envelopes any statements intended or calculated to influence the political action of his or its employees; or post or exhibit in the establishment or anywhere in or about the establishment any posters, placards, or hand bills containing any threat, notice, or information that if any particular candidate is elected or defeated work in the establishment will cease in whole or in part, or other threats expressed or implied, intended to influence the political opinions or votes of his or its employees.

The lesson is simple—keep politics out of the workplace. It’s divisive, makes employees uncomfortable, and, at least in this instance, illegal.

For more on the intersection between election day and the workplace, see Time off to vote on election day.

[Hat tip: The Word on Employment Law with John Phillips and Joe’s HR and Benefits Blog]

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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.

Is it illegal to ask employees to promise not to sign union authorization cards?

While the Employee Free Choice Act has stalled in Congress, it does not mean that it is no longer newsworthy. For example, tomorrow, four states (Arizona, South Carolina, South Dakota, and Utah) will have ballot measures aimed at preventing the EFCA from being implemented on a state level.

For more evidence of the continued relevancy of the debate over the ECFA, consider the case of Regis Corp. The NLRB issued a complaint against Regis as a result of allegations that it asked its employees to sign a document revoking their future right to form a union by using an authorization card. According to Regis, the purpose of the document was to protect the workers’ ability to vote in a secret ballot election. Regis also contends that the agreement was completely voluntary—up to 20% of its workers have refused to sign it and none have been terminated. Yet, five employees complained to the NLRB that they felt their jobs were at risk if they didn’t sign the form, or who said they lost jobs because they questioned it.

Last week, the NLRB issued a complaint against Regis as a result of the secret ballot pledge:

The NLRB today issued a complaint against Minneapolis-based Regis Corporation … alleging it illegally solicited employees to promise in writing that they would not sign union authorization cards in the future.

The complaint also alleges that, in a DVD played to employees across the country, the company’s Chief Executive Officer warned that hair stylists would be blacklisted from the industry if they supported a union. In the recording, he exhorted employees to sign a “Protection of Secret Vote Agreement”, which would prospectively revoke any union authorization cards signed in the future. The complaint further alleges that a district manager threatened employees with job loss if they refused to sign the agreement.

The alleged events occurred in the fall and winter of 2009-2010, at a time when legislation was pending in Congress that would have required employers to recognize a union if a majority of employees signed authorization cards. It has not been enacted.

I have not done the research to conclude whether Regis’s pledge is legal or illegal. But, as this case illustrates, under the current pro-labor NLRB labor practices that come close to the line scrutinized before being put into practice. As the NLRB is currently constituted, this federal agency is a hostile audience for employers accused of anti-union measures. When dealing with labor unions or employee concerted activities, employers should view their measures through the same labor-tinted glasses as will the NLRB.

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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.

WIRTW #150 (the sesquicentennial edition)

It’s hard to believe that I’ve been writing these wrap-ups for 150 weeks. When I started this feature on October 12, 2007, I never imagined I’d still be doing it three years later, let alone blogging three years later. Some other milestones from the week of October 12, 2007 (courtesy of Wikipedia):

• U.S. athlete Marion Jones returns the five medals she won at the Sydney Olympics and accepts a two-year ban from the sport after admitting to her use of a prohibited substance.

• The general election in the Canadian province of Newfoundland and Labrador gives the Conservative government of Premier Danny Williams an enlarged majority at the expense of the Liberals.

• Polish police evict about 65 rebellious ex-nuns who had illegally occupied a convent in Kazimierz Dolny, Poland, for more than two years in defiance of a Vatican order.

• The United States Centers for Disease Control and Prevention warns consumers not to eat Banquet pot pies or other pot pies made by ConAgra with a printed code ending in C9 due to possible links with a salmonella outbreak.

• Former U.S. Vice President Al Gore and the UN Intergovernmental Panel on Climate Change (IPCC) share the 2007 Nobel Peace Prize.

I’ll let you decide if WIRTW #1 was the most significant event of that week. Next week’s WIRTW #151 marks another milestone—my 1000th post. I promise I’m getting all my self-aggrandizing out of my system this week.

Here’s the rest of what I read this week:

Social Networking & Workplace Technology

• Take a Discovery Lesson From “The Social Network” – from Litigation PostScript. Persuasion Strategies for Litigators

• Who “Owns” A Twitter Account: Employer Or Employee? – from techdirt

• 6 Facebook, Twitter Mistakes That Can Get You Fired – from Joan Goodchild at PCWorld

• Social Media and Trade Secrets – Time to Panic? – from Trade Secrets Blog

• Survey: Judges Split on Their Use of Social Media – from Robert Ambrogi’s LawSites

• Why you should scrub departing employees’ emails – from Rob Radcliff’s Smooth Transitions

• Violation of a Non-Solicitation Provision Via Blog Post – from Molly DiBianca at the Delaware Employment Law Blog

• Should You Be Using Facebook For Recruiting? – from Lance Haun at TLNT

• Google tightening privacy leash on its employees – from Michael Liedtke at USAToday

Discrimination

• What Anita Hill did for America – from Workplace Fairness

• How General Counsel Can Recognize and Manage the Growing Risk of Retaliation Claims – from Shanti Atkins at Corporate Counsel

• Trucker demands religious accommodation for refusal to haul alcohol, tobacco – from Walter Olson’s Overlawyered

• Paid Administrative Leave is Not an “Adverse Employment Action” – from Daniel Schwartz’s Connecticut Employment Law Blog

• Sexual Harassment—You Know It When You See It – from HR Daily Advisor

• If not the face-slap standard, then what? – from Work Matters

• Husband Fired for Wife’s Conduct or Vice Versa – from The Word on Employment Law with John Phillips

• Distraction Theory - ADA Association Provision – from Philip Miles’s Lawffice Space

• Firing Offense: When is 'Shoot the Boss' Comment Not Considered a “Threat”? – from Mindy Chapman’s Case In Point

Wage & Hour

• Could Your PERSONAL Assets Be In The FLSA Crosshairs? – from Wage and Hour Laws Blog

• Overworked Employees Filing More FMLA Claims – from Workplace Diva

• DOL Stands for Department of Labor NOT Department of Employers – from Michael Haberman’s HR Observations

• Employer Not Liable For Telecommuter’s Accident While Traveling From Home To Office – from Laconic Law Blog

• Reporters are Not “Creative” Professionals – from Overtime Advisor

• Brett Favre Scandal Raises Issue of Workplace Protections for Independent Contractors – from Prima Facie Law Blog

• Satellite Dish Workers Tune In A FLSA Working Time Class Action – from Wage & Hour - Development & Highlights

Labor Relations

• Is Less Time from Petition to Election a Good Idea? – from EFCA & Labor Law Reform Blog

• Stop, Look, And Listen Before Terminating An Employee During A Union Organizing Campaign – from Hunton Employment & Labor Law Perspectives™

• NLRB Awards Compound Interest, Changing Long-Standing Rule – from Labor Relations Today

HR & Employee Relations

• 3 Workplace Guidelines for the Upcoming Election – from Where Great Workplaces Star

• If Your Employee Handbook References Progressive Discipline, You Better Use Progressive Discipline – from Minnesota Labor & Employment Law Blog

• NPR’s firing of Juan Williams: Politics aside, not a textbook example of how to fire with dignity and respect – from Sindy Warren at the Warren & Hays Employment Law Blog

Litigation

• Referring to Former Boss as Slimebag Does Not Constitute Disparagement, At Least in Ohio – from Fitzpatrick on Employment Law

• Using Litigation: Put out the client's lingering fires--permanently. Do that before you respond to the complaint – from What About Clients?

• Just Another Battle Between Employers and Employees – from Workplace Prof Blog

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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.

Best remedy for sick day abuse is a clear policy

In a 2006 episode of The Office, Dwight goes undercover to spy on co-worker Oscar when he suspects sick day abuse. He discovers that Oscar was using his sick day to ice skate. He also nearly discovers Oscar’s closeted homosexuality. I bring this up because, yesterday, careerbuilder.com published its annual list of the most unusual excuses for calling in sick.

The nationwide survey of more than 2,400 employers uncovered that 16% of businesses have fired a worker for missing work without a proven excuse. 29% of employers reported checking up on an employee who called in sick. Of those employers:

• 70% required a doctor’s note
• 50% called the employee at home
• 18% had another worker call the employee
• 15% (including Dwight Schrute) drove by the employee’s home

Of the more creative (or intriguing, depending on your perspective) excuses given by employees:

• A chicken attacking an employee’s mom
• A finger stuck in bowling ball
• A foot stuck in a garbage disposal
• One employee even called in sick from a bar at 5 p.m. the prior night.

I suggest that you call a sick day a sick day, and if you want to allow employees to use days off for “mental health days,” call your time off Paid Time Off, and not Sick Leave.

The best way to curb sick day abuses is to clearly spell your business’s expectation in a sick leave policy. What are the legitimate reasons for using a sick day? When is a doctor’s note required? What level of specificity is required? And, most importantly, what are the consequences if an employee is discovered lying about sick leave? According to CareerBuilder’s survey, 60% of employers allow employees to use sick day for mental health days. You may not think an employee’s “mental health day” is that big of a deal. You will reconsider, however, when you face a discrimination lawsuit from an employee terminated for dishonesty and you have to explain when you did not discipline a white employee who lied about his sick days.

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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.

Court concludes that “common slang” does not violate non-disparagement clause in severance agreement

I’ve seldom, if ever, negotiated a separation or settled an employment dispute for an employer without insisting that a non-disparagement clause be part of the signed agreement. The reasoning is simple—it’s not in a company’s best interest to have an ex-employee running around bad-mouthing it or trashing its reputation. The reality, however, is that a clause in a contract is only as good as one’s ability to enforce it when breached. In Ohio Education Assn. v. Lopez (10/19/2010) [pdf], one Ohio appellate court has removed a good deal of the bite from this class of clauses in separation and settlement agreements.

The facts of Lopez are straight-forward. In connection with the resignation of its assistant executive director and general counsel, the Ohio Education Association presented Lopez with a severance agreement. The agreement contained the following non-disparagement language, which is similar to that which you will find in most such agreements:

Employee further agrees not to at any time disparage, defame, or otherwise derogate Employer’s Officers, Executive, Committee Members, employees or agents.

OEA sued Lopez for an alleged breach of that clause by leaving the following voicemail for its outside counsel:

Davey, you never call me anymore. This is el jeffe. Call me sometime. I’m all settled with the OEA so you don’t have to worry about this gag order and all this s___ that slimebag Reardon said to you. So call me…. Bye.

The court of appeals concluded that while the voicemail did breach the non-disparagement clause, the breach was immaterial and therefore not actionable:

Here, the purpose of the separation agreement was to end the employment relationship and resolve all disputes. The nondisparagement provision was a negotiated term of the agreement. The provision OEA alleged Lopez breached uses the terms “disparage, defame, or otherwise derogate.” All of these terms connote harming a person’s reputation or causing one to seem inferior. The term “slimebag” is a common slang expression meaning “[a] despicable person, usually a male.” McGraw-Hill Dictionary of American Slang and Colloquial Expressions (4th ed.2006), 323…. This kind of trifling figure of speech is of so little consequence it cannot be said to be material and should be disregarded…. [T]he slang expression is such a part of modern casual speech as to be almost meaningless. OEA could not demonstrate that the message caused any damage to OEA or Reardon.

Because this case requires a showing of actual harm to prove a material breach of a non-disparagement clause, it will make it that much more difficult to enforce these provisions. Nevertheless, they remain an important part of any severance or settlement agreement because: 1) they establish the expectation that ex-employees are to act professionally and business-like when talking about your organization, and 2) protect your business from the malicious speech intended to cause real harm.

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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.

Do you know? The DOL is encouraging employee covert ops in your business

Six months ago, I wrote about the Department of Labor’s Wage & Hour Division’s launch of a one-stop web portal, We Can Help. Its stated purpose is to provide employees with information about their rights under federal wage and hour laws. At the time, I noted my concern that the most prominent part of this website is a section entitled, “How to File a Complaint.”

While trolling the We Can Help website over the weekend (yes, I know, the exciting life of an employment lawyer-cum-blogger), I came across a Work Hours Calendar [pdf]. The calendar encourages employees to track their arrival and leave times, start and stop times, meal breaks, and other breaks on a daily basis. The distinctions drawn between arrival versus start times and stop versus leave times suggests that the DOL is trolling for potential off-the-clock claims against employers. The calendar’s instructions shed some light on the DOL’s other goals, and lends further support to my belief that the DOL is prioritizing off-the-clock claims.

It is recommended that you keep all your pay stubs, information your employer gives you or tells you about your pay rate, how many hours you worked, including overtime, and other information on your employer’s pay practices. This work hours calendar should help you keep as much information as possible.

Employers must pay employees for all the time worked in a workday. “Workday,” in general, means all of the hours between the time an employee begins work and ends work on a particular day. Sometimes the workday extends beyond a worker’s scheduled shift or normal hours, and when this happens the employer is responsible for paying for the extra time. Usually, workers have to be paid for all the time that they work, including:

• Waiting for repairs to equipment necessary for work
• Time spent traveling between worksites during the workday
• Time spent waiting for materials during the workday
• Breaks less than 20 minutes long
• Time spent completing unfinished work after a shift

The form ends with the following ominous statement:

You work hard, and you have the right to be paid fairly. It is a serious problem when workers in this country are not being paid every cent they earn. All services are free and confidential, whether you are documented or not. Please remember that your employer cannot terminate you or in any other manner discriminate against you for filing a complaint with WHD.

Still think you can afford to put off that wage and hour audit?

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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.