Release of Claims Is Legally Enforceable

Q: My bank has been bought out by another financial institution, resulting in layoffs.

Our human resources department requested that each terminated employee sign a release stating that he or she will not bring legal action against their ex-employer for any reason related to their termination.

Employees who signed this release received a monetary supplement to the severance package. Employees who don’t sign the release don’t receive the supplement.

Is this a legally binding contract? If so, can legal action still be pursued at a later date on the grounds of discriminatory and/or unfair termination issues?

--S.B., Santa Monica

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A: A release of claims signed in exchange for a monetary payment over and above moneys already owed an employee at termination (such as unpaid wages and accrued vacation) is a valid and binding contract that will bar the ex-employee from later filing a lawsuit under most circumstances.

If the release is worded properly, it will be effective against discrimination and harassment claims, as well as wrongful termination and other types of employment claims. Some courts have required that a release specifically mention discrimination and harassment claims in order to apply to such claims.

In addition, there are special requirements for releases of age discrimination claims. The federal Older Workers Benefits Protection Act prescribes several elements that a release must contain in order to be enforceable.

--James J. McDonald Jr.

Attorney, Fisher & Phillips LLP

Labor law instructor, UC Irvine

Company Policy and Employee’s Reliability

Q: Our company works at the whim of its clients, often requiring employees to work overtime with little or no warning. This applies to all members of the staff.

One particular employee, after working two 12-hour days for which he receives overtime pay, frequently calls in sick the third day, citing such excuses as “food poisoning,” “exhaustion,” or “sore throat.” This leaves our small company in an awkward situation when there’s no one to do the project planned for the third day, especially if a client has planned to be present for the project and has a tight deadline.

This employee also often calls in on Mondays after having “partied too hard” during the weekend.

About half the time, our manager calls him at home to see how he’s feeling and if he’ll be in the next day--and no one answers the phone. When the manager sometimes questions the employee about this, he says he felt better and went to the movies.

Does our company have any way to challenge the employee’s behavior? Since he has now used all of his sick days for the year, pay can be withheld for days he does not show up. But that does not solve the problem of the company’s inability to count on him.

--H.K., Hollywood

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A: Reliability is an essential function of any job. In general, an employee who repeatedly fails to report when scheduled for work may be replaced with one who is more reliable.

Of course, the company should follow its own policies, if any, requiring progressive discipline. The company should also remember that absences that fall within the Family and Medical Leave Act, the California Family Rights Act or any other law requiring an employer to grant leaves of absence may not be considered grounds for discharge or discipline.

--Deborah C. Saxe

Management attorney

Heller Ehrman White & McAuliffe

Demands May Be Legal and Unreasonable

Q: I am in middle management, a salaried employee for a large corporation that is demanding that I handle more responsibilities and take on more projects, while continuing to handle my regular job.

I find it impossible to keep up with the demands, despite working many early mornings, evenings, weekends, holidays, etc. When I discuss my workload problems with my supervisor, I am told, “Just do the best you can.”

Can you offer any suggestions on how to protect one’s self from inappropriate performance reviews? There is no union.

Do you have any suggestions or advice as to what my rights are? I am feeling as if I have none and will be subjected to whatever the company thinks they can squeeze out of me until I die or retire.

--K.T., Ventura

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A: There is no easy solution to your problem. An employer is legally permitted to make unreasonable work demands of its employees.

Excessive employer demands are unlawful only if they violate a written or oral employment agreement, if they are truly extreme or outrageous, or if the company has singled out an employee for mistreatment because of age, sex, race or another protected characteristic.

Since there is no labor union to represent you, you will have to present your own case to your employer. As a first step, you should review the job descriptions in your department to determine whether any of your new tasks fall within the job duties of other employment classifications.

Next, you should investigate whether other middle managers with comparable job duties and salaries have also experienced the same increase in job demands and how they have responded.

Since you work for a large corporation, you should poll middle managers in other locations as well. If they have found a way to improve their working conditions, you could adopt their approach to solving the problem.

When you are prepared to present your best case, you should follow the procedures in your employment handbook for taking complaints to management. If there is no handbook, ask your company’s human resources or personnel department how you should proceed.

Before invoking these procedures, find out how other employees have fared when they used them. If the experiences of others were good and you decide to continue, make sure your supervisors know what you are doing. You want them on your side, if possible.

When it comes time to present your case, it is important that you show yourself to be a loyal, hard-working employee who wants to do the best job possible for the company. Be as polite and respectful as possible, and avoid blaming your supervisors and co-workers.

You may well find that your company is unaware of the demands that have been placed on you, and that you are considered a valuable corporate asset. At worst, you will have alerted upper management to the problem and will learned where you stand.

--Joseph L. Paller Jr.

Union, employee attorney

Gilbert & Sackman

If you have a question about an on-the-job situation, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626; dictate it to (714) 966-7873; or, e-mail it to [email protected]. Include your initials and hometown. The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice.