Bette Robin, DDS, JD 877 DrRobin
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PAY AND GO ON YOUR WAY
Sometimes the cheapest and easiest employment law strategy; in
terms of time, money and mental anguish, is to pay an employee to
release you from all employment claims. A new case, Marko Skrbina v.
Fleming Company (96 Daily Journal D.A.R., 6280, May 30, 1996)
clearly upheld the right of an employer to use a written release of all
claims in exchange for severance pay.
terms of time, money and mental anguish, is to pay an employee to
release you from all employment claims. A new case, Marko Skrbina v.
Fleming Company (96 Daily Journal D.A.R., 6280, May 30, 1996)
clearly upheld the right of an employer to use a written release of all
claims in exchange for severance pay.
In 1992 Fleming Company consolidated its operations, and Mr.
Fleming repeatedly. Finally, Mr. Fleming left work on an alleged
personal disability. harassment, discrimination, age discrimination,
unsafe working conditions Fleming Company, apparently eager to rid
themselves of this employ, offered Mr. Skrbina severance pay money in
exchange for a release of all liability. Mr. Skrbina accepted $8,000 in
exchange for signing the release.
Fleming repeatedly. Finally, Mr. Fleming left work on an alleged
personal disability. harassment, discrimination, age discrimination,
unsafe working conditions Fleming Company, apparently eager to rid
themselves of this employ, offered Mr. Skrbina severance pay money in
exchange for a release of all liability. Mr. Skrbina accepted $8,000 in
exchange for signing the release.
Mr. Skrbina admitted reading the before signing it, because he just
wanted the money. Mr. Skrbina also claimed he did not completely
understand what he was signing and did not really intend to give up all
his rights. However, the court was not impressed. The court said as
long as Mr. Skrbina could read, and had not signed the release under
fraud, misrepresentation, duress or deception, the release was valid.
wanted the money. Mr. Skrbina also claimed he did not completely
understand what he was signing and did not really intend to give up all
his rights. However, the court was not impressed. The court said as
long as Mr. Skrbina could read, and had not signed the release under
fraud, misrepresentation, duress or deception, the release was valid.
Once again, the court upheld one of the basic tenets of contract law:
that courts will not get involved in a private, legal agreement between
two parties. The court held that a release freely entered into, for
whatever reason, forever extinguishes an employee’s claims against an
employer. The courts said as long as the release is clear as to what the
employee is waiving, it is valid.
that courts will not get involved in a private, legal agreement between
two parties. The court held that a release freely entered into, for
whatever reason, forever extinguishes an employee’s claims against an
employer. The courts said as long as the release is clear as to what the
employee is waiving, it is valid.
Just a word about severance pay in general. Don’t. Severance pay is
not required by law, and unless you plan on uniformly giving it to every
departing employee, you may find yourself a victim of a valid
discrimination suit against you by the employee you did not pay. You
set a binding precedent by paying one employee severance pay and
not another, unless you have a clear and uniform policy detailed in your
personnel manual as to when and what you will pay (for example, to an
employee who has worked for you full-time for at least ten years you will
pay two weeks salary, etc.) So, unless you need to utilize a release, don’
t pay severance pay.
not required by law, and unless you plan on uniformly giving it to every
departing employee, you may find yourself a victim of a valid
discrimination suit against you by the employee you did not pay. You
set a binding precedent by paying one employee severance pay and
not another, unless you have a clear and uniform policy detailed in your
personnel manual as to when and what you will pay (for example, to an
employee who has worked for you full-time for at least ten years you will
pay two weeks salary, etc.) So, unless you need to utilize a release, don’
t pay severance pay.
The court completely upheld the release when Mr. Skrbina subsequently
attempted to sue the Fleming Company. Mr. Skrbina admitted reading
the release, but stated he did not consult an attorney or any other
person for advice before signing it, because he just wanted the money.
Mr. Skrbina also claimed he did not completely understand what he
was signing and did not really intend to give up all his rights. However,
the court was not impressed. The court said as long as Mr. Skrbina
could read, and had not signed the release under fraud,
misrepresentation, duress or deception, the release was valid.
attempted to sue the Fleming Company. Mr. Skrbina admitted reading
the release, but stated he did not consult an attorney or any other
person for advice before signing it, because he just wanted the money.
Mr. Skrbina also claimed he did not completely understand what he
was signing and did not really intend to give up all his rights. However,
the court was not impressed. The court said as long as Mr. Skrbina
could read, and had not signed the release under fraud,
misrepresentation, duress or deception, the release was valid.
DrRobin@BetteRobin.com
17482 Irvine Blvd., Suite E
Tustin, CA 92780
Tustin, CA 92780
Tele:
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Releases are of considerable significance in certain employment law
situations. Sometimes, you may have a threat of a complaint or a
complaint filed against you by an employee, and you know you might
just be ‘a little guilty.’ Or, you might not be ‘guilty’ at all, but you suddenly
recall that your employee ‘knows too much about you.’ You might
remember the time when you just slightly sexually harassed her, or that
you occasionally bill insurance companies with improper codes, and
the list goes
on. Rest assured that if the complaint makes it to court, you will see all
of your past errors and many others you have forgotten about flash
back into your life. And you will pay dearly for their privilege. So,
severance pay releases are often a good idea.
situations. Sometimes, you may have a threat of a complaint or a
complaint filed against you by an employee, and you know you might
just be ‘a little guilty.’ Or, you might not be ‘guilty’ at all, but you suddenly
recall that your employee ‘knows too much about you.’ You might
remember the time when you just slightly sexually harassed her, or that
you occasionally bill insurance companies with improper codes, and
the list goes
on. Rest assured that if the complaint makes it to court, you will see all
of your past errors and many others you have forgotten about flash
back into your life. And you will pay dearly for their privilege. So,
severance pay releases are often a good idea.
How much money should you pay for a severance pay release? The
quick answer is: whatever you think it will take. Sometimes a few
hundred dollars is enough, and sometimes several thousand won’t be
quite enough. You know your employee, her lifestyle, her need for
money; and you know the validity of her claim. The amount is
completely negotiable. Do not in any way force an employee to sign the
release. In fact, you should allow at least a few days between
presentation of the release and its actual signing so that an employee
can get legal advice if they so choose, and have time to think about it.
The court in Skrbina was very easy on this issue, however that is not
always the case.
quick answer is: whatever you think it will take. Sometimes a few
hundred dollars is enough, and sometimes several thousand won’t be
quite enough. You know your employee, her lifestyle, her need for
money; and you know the validity of her claim. The amount is
completely negotiable. Do not in any way force an employee to sign the
release. In fact, you should allow at least a few days between
presentation of the release and its actual signing so that an employee
can get legal advice if they so choose, and have time to think about it.
The court in Skrbina was very easy on this issue, however that is not
always the case.
Reasons you might want to consider a severance pay release:
1. Your employee has threatened or filed an employment suit against
you.
2. Your employee wants to leave on a personal disability leave, for
which you do not pay, and you want to avoid potential problems and
just want her to leave permanently.
3. Your employee has embezzled and has a retirement plan with your
office. You can negotiate a release in favor of the employee stating that
you promise not to sue in exchange for release of the retirement plan
money to cover the embezzlement.
1. Your employee has threatened or filed an employment suit against
you.
2. Your employee wants to leave on a personal disability leave, for
which you do not pay, and you want to avoid potential problems and
just want her to leave permanently.
3. Your employee has embezzled and has a retirement plan with your
office. You can negotiate a release in favor of the employee stating that
you promise not to sue in exchange for release of the retirement plan
money to cover the embezzlement.
© Bette Robin, DDS, JD 7/96
DrRobin@BetteRobin.com
17482 Irvine Blvd., Suite E
Tustin, CA 92780
Tustin, CA 92780
877 DrRobin
Tele:
714.421.4407
Fax:
714.398.8808