Tag: release

June 15, 2019

Calling Your Employment Lawyer — Pregnant Employee

I’ve been counseling employers for almost 14 years. One thing that’s become clear over that time is that no one wants to have to call their employment lawyer! But the truth is many companies would be better off if they called more often. It’s usually much cheaper to find out the law and best approach to an employment situation before it leads to litigation or other disputes. This is definitely true when you’re dealing with a complex scenario involving a pregnant employee, for example.

So, what does a call with an employment lawyer sound like?

My actual conversations with clients are confidential, of course. But I can summarize the tone from 1000s I’ve had over the years by way of example. The facts and circumstances of this scenario involving a pregnant employee are purely hypothetical and should not be followed as guidance for any actual situation. Most likely, I would have more background information about the employer before taking this call. Local and state laws also vary and could alter any legal considerations.

“We Have This Employee. . . .”

Client: “Hi, Scott.”

Lawyer: “Hi. How are you? Oh, I know, you’d be better off if you weren’t calling me.”

Client: “Well, nothing personal.”

Lawyer: “No, I get it. None of my clients ever want to be speaking to me about work. It’s the nature of my business. Anyway, how can I help?

Client: “We have this employee. She’s not really working out. She’d had performance issues for a while, and we’d like to move on . . . . But . . . .”

Lawyer: “Yeah, there’s always a ‘But’!”

“She’s Pregnant”

Client: “Afraid so, or I wouldn’t be calling. Before we had a chance to do anything about her performance issues, she told us last week she’s pregnant.”

Lawyer: “I see, well congratulations to her, but you’re worried about trying to let a pregnant employee go?”

Client: “Yes, but, that’s not everything. She had also filed a harassment claim against a co-worker a few months back. And she’s still angry that we didn’t fire the guy she filed it against.”

Lawyer: “Alright. Let’s try to work through this. First, how long has she been working there?”

Client: “Only nine months. She’s our receptionist and also does some of our social media.”

Lawyer: “So, she’s not FMLA eligible yet, but might be eligible for New York Paid Family Leave. Is she full-time?

Client: “Yeah, she works 40 hours. At least, she’s supposed to be working. She spends most of her time on Facebook.”

Lawyer: “You mean doing personal things, not managing the company’s social media.”

Client: “Right. But that’s not the real problem. We should do a better job of policing that and re-directing her. But the bigger problem is that she also answers phones and greets people who come into the office. But her personality is hit or miss. She’s not rude, exactly, but not always friendly either. Plus, she gets messages wrong, forgets to pass them along, etc. We’ve had a few complaints since she started.”

Lawyer: “Has she said when the baby is due?”

Client: “About 3 months from now.”

Lawyer: “So, at that point, she might be eligible for FMLA leave too. Did she get the paperwork on that?”

Client: “Not yet, but that’s one thing we needed direction on. As you know, we have over 50 employees, so we do have people eligible for FMLA. But since she hasn’t been here a year yet, we didn’t know how to handle it.”

Lawyer: “If the leave will begin after she has been there for a year and she meets the other requirements–so if she will have worked 1,250 hours over the past year when her leave starts–then she would qualify for FMLA leave. So you should probably at least give her the FMLA paperwork at this point to avoid a technical violation there.”

Client: “Does that mean we have to keep her on until after her 12 weeks expires?”

Lawyer: “Not necessarily. Even if she becomes eligible for FMLA leave, you don’t have to retain her if you have other legitimate grounds to end her employment. But, of course, it can’t be because of her pregnancy or leave. And even if it isn’t, she could claim it is discriminatory to let her go.”

Client: “So, are we better of waiting until she has the baby and then fire her after she comes back?”

Lawyer: “Not necessarily. That could still be discriminatory or retaliatory.”

“What Should We Do?”

Client: “Okay, you’re the expert. What should we do with her?”

Lawyer: “I know you don’t want to hear it, but like so many of these situations, it depends on various factors and considerations. But it comes down to why you’ve kept her on this long and now want to let her go. If it’s at all related to the pregnancy, then you probably shouldn’t do it. Maybe she’ll take the leave and then not come back, but if she wants to come back, you’d need to let her.”

Client: “We don’t have a problem with her being pregnant. If she were doing her job, we’d be happy to let her take the leave.”

Lawyer: “Then you have to be able to explain why you’re considering letting her go now. Did anything happen recently that’s of particular concern?”

Client: “Remember I mentioned she filed a harassment complaint against a co-worker?”

Lawyer: “Yes. We needed to get back around to that too.”

Client: “Yeah. She claimed a guy who has worked here for 20 years was hitting on her whenever he walked in the building. Now, he’s a salesman who works remotely, so he’s only in a few times a month. She didn’t make any extreme allegations, just that he was too flirty. We investigated it and directed him to stop, and he has.”

Lawyer: “Okay. But has become relevant again?”

Client: “Yes. We need to promote this guy to a director of sales position where he will be in the office full-time. So he’d walk past her every day. Probably multiple times every day. But he refuses to work in the building as long as she’s the receptionist.”

Lawyer: “Is that why you want to let her go now?”

Client: “That’s not the only reason. We know we can’t fire her because the guy she complained about doesn’t want to work in the same building with her. It’s just that we have had these performance issues and they’re not getting better. Eventually, we’d have to let her go. But between the pregnancy and trying to promote the sales guy, we don’t know what the best approach is.”

Lawyer: “Right. I see you’re trying to do the right thing, but there seems like landmines in every direction.”

Client: “Pretty much. So that’s why we called you.”

“Any Alternatives?”

Lawyer: “I understand. Glad you did. Now, let’s see. . . . Just by chance, are there any other open jobs that she might be able to do without the same performance issues?”

Client: “We could try to make her an administrative assistant.”

Lawyer: “But it sounds like she’s already had problems with messages and communication. Would that be a factor in those jobs?”

Client: “Yes. It would just move her from the front desk and maybe solve the problem with the sales guy.”

Lawyer: “I don’t really want you to create new problems in trying to solve this one. If we figured out the right approach, would you consider offering her a severance package?”

Client: “We might be able to pay her a month’s pay and continue her health insurance. I guess that would become an issue for her with the baby and all.”

Lawyer: “Good point. So she’s taking the company’s insurance?”

Client: “Yes. She is. She is married, but they have family coverage through us. He might have it available at work too. I don’t know. Maybe ours is a better deal.”

Lawyer: “Sure. That could be an issue. If he has coverage, then losing yours might not be as bad. But she’s looking at some disability and PFL benefits coming up when she has the baby too if she were still employed. And if he doesn’t have insurance available, they might have to go on COBRA coverage. She would probably get unemployment.”

Client: “Yeah. We wouldn’t contest the unemployment.”

Lawyer: “Okay, how bad has her performance been? Has it gotten any worse lately?”

Client: “It’s just ongoing mistakes. No single recent incident.”

“Severance Package?”

Lawyer: “Alright, overall, I’d say there is some risk of some kind of pregnancy or even retaliation–for the harassment complaint–claim if you fire her now. But that doesn’t necessarily diminish as time goes on. Maybe it would get easier if she does something really bad, but you don’t want that either for operational reasons. Some options include putting her on a formal performance improvement plan and seeing how that plays out or just having a conversation with her now pointing out the performance problems and noting that you have to let her go but will offer a severance package. There’s no perfect solution. If she says no to the severance and you fire her, then she might make a claim.”

Client: “But if she agrees to the severance, then we’d get a release and she couldn’t sue us?”

Lawyer: “Yes, we’d make the severance contingent on her signing a release.”

Client: “Okay, I got it for now. I’ll go back and speak to the managers involved. I’ll probably be giving you another call once we decide how to handle this.”

Lawyer: “Sounds good. I’ll be here. Hopefully, there’s a way to make this work out okay for everyone.”

Client: “Hope so. Thanks.”

Some of these calls lead to a straightforward solution. Others, like this hypothetical one, involve balancing risky alternatives. But understanding the risks better allows better decisionmaking and helps avoid obvious missteps.

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March 15, 2018

Voluntary Separation Programs

Voluntary separation programs can be mutually beneficial devices for making workforce adjustments. Employers can use them on their own or as a precursor to an involuntary program. Each program is different, but some common elements appear regularly.

What Is a Voluntary Separation Program?

Generally, I’m talking about any circumstance where an organization provides a group of employees the opportunity to resign voluntarily and obtain specified benefits that they would not otherwise be entitled to receive.

Reasons for Voluntary Separation Programs

There are many reasons why companies decide to implement voluntary separation programs. These are probably the most common:

Reduce Headcount

Whether due to lower business volume, technological advances, or other factors, sometimes companies no longer need as many workers. The result: a reduction in force. The options? Voluntary or involuntary terminations. It’s usually not enough for a company to announce that it needs 10 fewer employees only to discover that 10 people are ready to leave anyway. Instead, they may try to offer some inducement to entice employees to move on.

Reduce Payroll

Although reducing headcount can sometimes be a cost-saving measure, it doesn’t have to be. Some companies may have reason to downsize without spending less on labor costs. Space constraints, for example might make it economical to pay fewer people to do as much or more work.

But often money is a significant factor. And reducing payroll doesn’t have to mean reducing headcount. The focus could be on parting ways with more highly compensated employees. The company may even plan to replace them very soon, but with someone who demands a lower wage or salary.

Reorganize Functions

Neither money nor numbers have to be primary considerations. An organization may simply have the wrong personnel for their business going forward. Voluntary separation programs may coincide with retraining programs, for example. The idea could be to allow those who don’t want to transition to new roles to leave the company with some form of compensation for helping the business progress.

Facilitate Retirements

Companies can’t force employees out because of their age. But there may be ways they can make it easier for an employee to retire voluntarily. Many workers of traditional retirement age who would like to retire cannot afford to do so these days. In some situations it makes sense for their employers to provide an optional retirement program that would provide monetary or other (e.g., health insurance) benefits to allow employees to wrap up their careers on their own terms.

Structuring Voluntary Separation Programs

The ideal first step is to determine the company’s goals. Is it one of the four categories above? A combination of them? Something else?

With goals in mind, the employer can then consider which employees will be eligible to participate in the program. The program shouldn’t discriminate based on any protected characteristic, but not everyone needs to be offered the chance to participate. If the goals correspond to functional or headcount issues, then the company might only offer the program to specific departments or job functions. If costs are a factor, then the offer may extend only to relatively high earners.

The next step is to determine what to offer the employees. Usually, this would include some amount of cash severance pay. Health insurance or other benefit continuation may also be appropriate. Sometimes employers also offer out-placement services, like career counseling or skills training, to individuals who will remain in the workforce rather than retire altogether.

Normally, if the employer will be giving out something of value to employees who choose to leave, they should require the employee to sign a release of claims. Otherwise, despite the “voluntary” nature of the program, employees may turn around and sue the company. They may claim wrongful termination, or the allegations may relate to other aspects of their prior employment. Most employees who choose to participate in a separation program won’t object to signing a release. Those who do were probably going to cause trouble anyway. Then at least their reluctance or refusal to sign sends a valuable signal to the employer.

(Click here more on employee releases.)

Pitfalls to Avoid

Voluntary separation programs often work out well. However, as with everything, there are traps for the unwary. Here are some.

First, some employers use these programs to get younger. This raises potential age discrimination concerns. Merely offering a voluntary program that gives more senior employees the opportunity to resign/retire usually shouldn’t be unlawful. But companies must be careful about their approach. An employer who has been outspoken about getting younger to cut costs, bring on new skill sets, etc., can expect rumblings about age discrimination (if not litigation) if it later terminates the employment of older workers, even if justifiable on factors other than age.

Second, employers should obtain releases only after employment has ended. Sometimes employees accept a voluntary severance package, sign a release, and then continue to work until a later separation date. Then if something transpires between signing the release and the formal separation from employment, the release will not stop the employee from asserting a claim.

Third, organizations must plan for multiple possible outcomes. Sometimes the voluntary program produces the desired workforce changes on its own. Other times, too many, too few, or the wrong employees elect to participate. It may be possible to structure the program to avoid some of these bad outcomes (e.g., by limiting participation to a particular number of employees). But, whatever the approach, the voluntary nature leaves the results largely in the employees’ hands. Thus, employers should plan ahead for the next steps based on different contingencies.

Fourth, business needs can change quickly. And it takes time to design and implement a voluntary separation program. It is often best to keep a tight timeline for the program, so it wraps up before business conditions change significantly.

Final Thoughts

Implementing a voluntary separation program requires considerable planning. For most companies this planning should involve a team who can both provide the necessary background information/skills and keep the program confidential until launch. Team members ideally should include upper management, supervisors, human resources, and legal counsel experienced with group termination programs.

September 13, 2017

Employee Releases Under the Older Workers Benefit Protection Act

The federal Age Discrimination in Employment Act of 1967 (ADEA) prohibits discrimination against employees 40 years or older because of their age. In 1990, Congress amended the ADEA through the Older Workers Benefit Protection Act (OWBPA). The OWBPA includes specific requirements that employers must meet if they want to obtain enforceable employee releases of ADEA claims.

Employers most often seek releases from employees at the end of employment. They typically offer severance pay or other benefits in exchange for a waiver of claims. But if the release doesn’t meet the OWBPA requirements, then the employee may still be able to claim age discrimination.

OWBPA Requirements for Employee Releases

The waiver of claims must be part of a written agreement between the employee and the employer. The agreement must be written in a manner “calculated to be understood by such individual, or the average individual eligible to participate.”
The release must specifically refer to rights or claims arising under the ADEA.
The employee cannot waive rights or claims that may arise after the release is signed.
The employee must receive something of value in exchange for the waiver of rights. It must be something that the employee did not already have the right to receive.
The employer must advise the employee in writing to consult with an attorney before signing the release agreement.
The employer must give the employee at least 21 days to consider the release agreement.
The release agreement must give the employee at least 7 days after signing to revoke the agreement. The agreement does not become enforceable before the end of the revocation period.

Additional Requirements for Group Programs

The OWBPA contains additional requirements for waivers connected to an “exit incentive or other employment termination programs offered to a group or class of employees.” This includes both voluntary and involuntary programs. Thus, it applies both to voluntary resignation programs and involuntary reductions in force. Most likely, it applies to any situation where you ask more than one employee to sign a release related to the same decisionmaking process. It does not, however, necessarily apply when an employer fires two employees around the same time, but for unrelated reasons

For group programs, the employer must allow employees least 45 days to consider the release agreement, rather than 21.

In addition, the employer must give the following information to employees at the beginning of the 45-day consideration period:

A description of any class, unit or group of employees covered by the program, any eligibility factors, and any applicable time limits.
A list of job titles and ages of all employees eligible or selected for the program, and the ages of all employees in the same job classification or organizational unit who are not eligible or selected for the program.

Many employers especially hesitate to provide the age lists required in group programs. However, failing to do so would render the waiver of ADEA claims unenforceable.

Use of OWBPA as a Guideline

The OWBPA only applies to waiver of ADEA claims. Accordingly, many employers choose not to follow all of its requirements for releases by employees under the age of 40. However, an employee could challenge any waiver as unenforceable on basic legal principles. Essentially, an employee could claim that they did not understand what they were signing. Using the OWBPA requirements for all employment releases promotes greater enforceability. If it is good enough for Congress and its federal age discrimination law, shouldn’t it be good enough for all employee waivers?

To reiterate, many employee releases should still be enforceable even if they don’t satisfy some aspects of the OWBPA. But it’s usually not worth taking that risk.

Of course, employers should not try to obtain a waiver of legal claims without the assistance of an experienced lawyer. Each situation may be different and necessitate different approaches.