Manager Responsibilities - Waivers of Discrimination Complaints

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You may ask employees who are laid off or subjected to a reduction in force to formally agree not to file a discrimination complaint against your business (in other words, to "waive," or release, their right to sue). Special rules apply to these types of agreements:

• The agreement must provide the employee with something of value that they are not already entitled to in exchange for their promise not to sue.
  • For example, the agreement may offer the employee a specified amount of money (separate from any salary or other benefits to which the employee is already entitled) in exchange for her agreement not to sue.
• The agreement may waive the employee's individual right to file a lawsuit or obtain relief (such as money) based on past experiences.
  • The agreement may not require the employee to waive any right to sue that might arise after she signs the agreement. For example, if a manager sexually harasses an employee a week after she signs the agreement, a business may not defend itself by claiming that the agreement prevents the employee from filing a lawsuit.
• The employee must "knowingly and voluntarily" agree not to file a discrimination complaint. Certain, very specific rules apply, depending on the type(s) of lawsuits that the employee agrees not to file.
  • One set of rules applies to agreements not to file race, color, religion, sex, national origin, disability, genetic information and pay discrimination complaints.
  • A different set of rules applies to agreements not to file age discrimination complaints.
• The agreement may not restrict the employee from filing a charge of discrimination with the EEOC.
• The agreement may not limit the employee's right to testify, assist or participate in an EEOC investigation, hearing or proceeding.
• The agreement must comply with applicable state and federal laws.

Waiver rules can be complicated. You may want to consult a lawyer or contact the EEOC for assistance.

See also:

I need to lay off employees.

Avoiding Discrimination in Layoffs or Reductions in Force (RIF)