EEOC guidance on severance agreements
The federal Equal Employment Opportunity Commission (EEOC) has issued a new guidance on what is legal and advisable for severance agreements. As more and more Americans face layoffs, this new guidance is most timely.
Of particular interest for whistleblowers, the EEOC guidance makes clear that, "no agreement between you and your employer can limit your right to testify, assist, or participate in an investigation, hearing, or proceeding conducted by the EEOC under the ADEA, Title VII, the ADA, or the EPA. Any provision in a waiver that attempts to waive these rights is invalid and unenforceable." The guidance cites the EEOC Enforcement Guidance on Non-Waivable Employee Rights Under EEOC Enforced Statutes (April 1997), and 29 C.F.R. § 1625.22(i)(2). The guidance also states that no agreement can restrict an employee's right to file a charge of discrimination.
The EEOC's guidance also contains information about special rules for waiver of age discrimination claims. Some layoffs have been found to be discriminatory against workers over 40-years-old, and those would be unlawful. Workers suspecting age discrimination are advised to see an specialist in such claims before agreeing to any waiver of them.
In this guidance, the EEOC has used language expressing the employee's point of view. This is a new tone for the EEOC, and one I hope will continue.
.jpg)
FOR IMMEDIATE RELEASE PRESS RELEASE
July 31, 2009 Contact
Monica L. White
WILL JOB DISCRIMINATION CASES CONTINUE TO INCREASE IN THE OBAMA ERA?
Atlanta, GA July 31, 2009
Monica White like many Americans celebrated in November 2008 the historic election of Barack Obama as the first black president of the United States. She also had additional reason to celebrate having just been hired as the only black woman in senior management at DSC Logistics; an Illinois based third party logistics and distribution Management Company for Kellogg’s, Kimberly Clark, RJ Reynolds, Tetley Tea, and Smuckers with locations nationwide. Euphoric with the Obama promise for change she eagerly started her job as a human resources executive and one of the top 5% in America who make a $100,000 plus. Now seven months later that euphoric optimism and hope for a change in America has disappeared into despair and frustration after having been wrongfully terminated by her employer and now finding herself embroiled in an Equal Employment Opportunity Commission (EEOC) case.
She is one of the growing numbers of women and minorities who have filed a discrimination complaint with the EEOC for discrimination and retaliation. The process is often lengthy and uncertain. According to a March 12, 2009 online article published in DiversityInc, entitled, Job Discrimination Hits Record High: Is the Economy to Blame?, “ More people experienced workplace discrimination last year than ever before. New EEOC data shows 95,402 job-bias claims were filed last year, up 15 percent from the previous year.” Daryl C. Hannah, the article’s author points to the economy as one possible explanation for the increase in cases.
Still others believe that employers are unaware of discrimination policies and fail to employ human resource professionals who know and understand the federal guidelines. Others feel the old adage about minorities of, last hired and first fired especially applies in an economic downturn despite the election of Barack Obama. Some feel that this gave those who have a proclivity toward discrimination more fuel to do so out of anger over his election.
Meanwhile, Monica White can’t help but wonder if the Obama administration will become more aggressive toward companies who discriminate against employees. “I worked 24/7 for that company”, she says, “and this is how I am treated.” “After coming into the office from a conference trip I was told to pack up my stuff because I was being terminated.”
As the economy edges toward improving and the newness of the Obama election wears off there is only one thing certain and that according to Socrates, is change. Isn’t it ironic that this is the very platform that Barack Obama declared as the new mantra for his presidency?
#####
It's tough to read the papers or turn on the television without hearing something about layoffs. The unreported story is like this one where women and minorities are being wrongfully terminated by companies that don't have a clue about proper termination procedures. Hopefully the EEOC will step-in and correct any wrongdoings. This has a catastophic effect on families especially when continued healthcare coverage another hot topic is concerned. Good luck!
In reference to the EEOC's guidance for whistleblowers I'd like to add a few other terms. How about "discrimination busters", "workplace safety saints", "corruption cops." Unfortunately, the term "whistleblower" has to some degree been demonized by Corporate America.
Employee(s) showing the fortitude and initiative to expose workplace discrimination or corporate wrongdoing should always be commended. I believe requiring employers to train or instruct employees about their rights in this area would contribute to businesses thinking twice about intimidating or retaliating against employees seeking to exercise their rights in the workplace.