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.