Posts tagged with "Americans with Disabilities Act"

Special Education and COVID-19: Impact on your Child’s Section 504 Plan or IEP

In March of 2020, many Governors across the country closed their schools due to the COVID-19 pandemic.  On March 21, 2020, the U.S. Department of Education (“DOE”) published guidance for local school agencies on how to appropriately handle special education and services to children with disabilities during the ongoing public health crisis. The DOE has emphasized that school districts’ compliance with the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act (Section 504), and Title II of the Americans with Disabilities Act (“ADA”) school districts should not prevent distance instruction.  Accordingly, special education services should continue during the period of remote learning from home as much as feasible.

During school closures due to the virus, if local education agencies (“LEAs”) continue to provide educational opportunities to general student populations, children with disabilities are entitled to receive the same educational opportunities that are being afforded to general student populations.  Specifically, children with disabilities are entitled to a free and appropriate education (“FAPE”), pursuant to Section 504 and the ADA.   LEAs must ensure that, to the greatest extent possible, each student with a disability be provided the special education and related services set forth in the student’s IEP or Section 504 Plan.  In the event of school closures, an IEP Team or PPT may, but is not required to, consider remote or distance learning plans in your child’s IEP, as long as the instruction is meaningful.

During the COVID-19 national emergency, schools may not be able to provide all services in the same manner that are typically provided to students.  While it may be unfeasible or unsafe for some school districts, during current emergency school closures, to provide hands-on physical therapy, occupational therapy, or sign language educational services, some disability-related modifications and services may be effectively provided online.  For example, extensions of time for assignments, videos with accurate captioning or embedded sign language interpreting, accessible reading materials, and speech or language services by way of video conferencing may all be successfully instituted remotely for students with disabilities.  Teachers providing special education plans may have to create more specific daily or weekly plans for a special needs child who is now at home for the rest of the school year.

Additionally, the DOE guidance includes IDEA timelines for state complaints, IEPs, reevaluations, and due process hearings and encourages school teams and parents to work collaboratively and creatively to meet IEP timeline requirements. If a child has been found eligible to receive special education and related services under the IDEA, the IEP Team must meet and develop an initial IEP within 30 days of that determination and IEPs must be reviewed on an annual basis.  However, due to COVID-19, parents and school districts may agree to conduct IEP meetings through alternate means, including video conferences or telephonic conference calls.  Of note, due to the pandemic, when making changes to a child’s IEP, the parent of a child with a disability and the school district may agree to not convene an IEP Team meeting for the purposes of making changes and can develop a written amendment or modification to the child’s IEP.

A reevaluation of a child with a disability must occur at least every three years, unless both the parents and school district agree that a reevaluation is unnecessary. However, a reevaluation may be conducted through a review of existing evaluation data when appropriate, without a meeting and without obtaining parental consent, unless it is determined that additional assessments are needed.

In regard to state special education complaints, absent agreement by the parties, a state may be able to extend the 60-day timeline for complaint resolution, if exceptional circumstances exist.  The DOE has now stated that exceptional circumstances include a large number of state workers unavailable or absent from work for an extended period of time due to the pandemic.  In regard to due process hearings, the parties can come to a mutual agreement to extend the 30-day resolution deadline due to COVID-19.  Additionally, a due process hearing officer may grant a specific extension of time at the request of either party to the hearing.

Moreover, when a child with a disability is classified as needing homebound instruction because of a medical problem, as ordered by a physician, and is home for an extended period of time, generally more than ten (10) consecutive school days, an individualized education program (IEP) meeting could be necessary to change the child’s placement and the contents of the child’s IEP.  If a child with a disability contracts COVID-19 and has to be absent from school for an extended period of time while school is open, parents or guardians may be able to make arrangements with the LEA to provide homebound instruction special education and related services.

If you have any questions about special education and related services during the COVID-19 pandemic, contact Attorney Joseph Maya at (203) 221-3100 or JMaya@mayalaw.com for a complimentary consultation regarding your matter.

Americans With Disabilities Act

State, county laws dilute effect of disability rulings. The U.S. Supreme Court ruling that narrowed the definition of a disability under the Americans With Disabilities Act (ADA) will have limited use for Westchester employers struggling with the issue, a pair of lawyers specializing in employment law said. Continue Reading

Failure to Hire Due to Race, Gender, Sexual Orientation… and Political Viewpoints?

By Lindsay E. Raber, Esq.

The State of Connecticut has in place a particularly comprehensive, sweeping statutory scheme (collectively the Connecticut Fair Employment Practices Act[1]) that outlines the prohibition of discriminatory practices in employment on a variety of bases:

Race, color, religious creed, sex, age, gender identity or expression, marital status, national origin, ancestry, present of past history of mental disability, mental retardation, learning disability or physical disability, including but not limited to blindness.[2]

LGBT individuals enjoy recognized protections under State workplace discrimination law.[3] Furthermore, there are additional federal laws through which an aggrieved party may seek recourse.[4] Thus, under Connecticut law, employers, including school districts, cannot refuse to hire or discharge an employee on any of the above bases.

What happens, however, if an aggrieved party alleges that he or she was not hired because of his or her political beliefs and advocacy? Such is the case of Teresa Wagner, who sought to teach law courses at the University of Iowa College of Law (UI). A staunch conservative Republican and UI alum, Ms. Wagner “previously worked for the National Right to Life Committee, which opposes abortion and euthanasia, and the Family Research Council, which takes conservative positions on social issues.”[5] At the time Ms. Wagner applied for two legal research and writing positions at UI, she was “already working part-time at the law school’s writing center” and “had received positive reviews” for her performance in that capacity.[6] She did very well during the interview process and “her application was well received by the Committee.”[7]

On the other hand, the law school faculty “is viewed as being liberal. Only one out of 50 professors is a registered Republican.”[8] In an email to the dean of UI, the associate dean wrote:

Frankly, one thing that worries me is that some people may be opposed to Teresa serving in any role in part at least because they so despise her politics (and especially her activism about it).[9]

In addition, Ms. Wagner’s “primary, vocal opponent to hiring her” was a professor who “had clerked for Justice Blackmun during the time Roe v. Wade was written, has written tributes to Justice Blackmun and his abortion jurisprudence, and has published legal articles advocating a pro-choice viewpoint on abortion.”[10]

Subsequently, a job offer was extended to an adjunct legal research and writing instructor who was less qualified and “portrayed himself as a liberal to other employees at the Writing Center.”[11] The second position remained unfilled, and Ms. Wagner received word that she was not being hired. She filed a civil rights lawsuit in federal court, alleging UI’s dean discriminated against her in violation of the First Amendment’s right to political speech and association. However, the district court granted summary judgment in favor of UI, thus dismissing the case, citing qualified immunity protection.

However, on appeal, the Eighth Circuit Court of Appeals reversed, finding that “[t]he district court erred in finding that qualified immunity protects [UI’s dean] from liability in her individual capacity.” As the Court noted in part, “[UI’s dean] had several indications that Wagner’s political beliefs and associations may have played a role in the faculty’s hiring process.”[12] Despite such notice, the UI dean failed to hire Ms. Wagner, and her “position as a supervisor does not shield her from liability.”[13]

The trial in this case has already begun, and it will be interesting to see the results. Though Connecticut does not recognize political affiliation as a protected class in discrimination cases, no doubt the outcome of this case may result in widespread implications if the courts find in Ms. Wagner’s favor.

If you are the victim of discriminatory practices and treatment in the workplace, it is imperative that you consult with an experienced employment law practitioner. The lawyers at Maya Murphy, P.C., assist clients in Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, and Westport. If you have any questions, please do not hesitate to contact Attorney Joseph C. Maya. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.

[1] Connecticut General Statutes § 46a-51 et seq.

[2] Connecticut General Statutes § 46a-60(a)(1).

[3] Connecticut General Statutes § 46a-81c.

[4] See, e.g., Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA).

[5] “Lawsuit Pits Political Activism Against Campus Diversity,” by Adam Liptak. January 9, 2012: http://www.nytimes.com/2012/01/10/us/sidebar-lawsuit-against-iowa-law-school-pits-activism-against-diversity.html

[6] “Trial starts in liberal bias lawsuit against former University of Iowa law dean,” by Chris Minor. October 16, 2012: http://wqad.com/2012/10/15/trial-starts-in-liberal-bias-lawsuit-against-former-university-of-iowa-law-dean/?hpt=ju_bn5

[7] Wagner v. Jones, No. 10-2588 at 3 (8th Cir. Ct. June 16, 2011).

[8] Id.

[9] Id. at 7.

[10] Id. at 6.

[11] Id.

[12] Id. at 19.

[13] Id. at 22.

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Failure to Hire Due to Race, Gender, Sexual Orientation… and Political Viewpoints?

By Lindsay E. Raber, Esq.

The State of Connecticut has in place a particularly comprehensive, sweeping statutory scheme (collectively the Connecticut Fair Employment Practices Act[1]) that outlines the prohibition of discriminatory practices in employment on a variety of bases:

Race, color, religious creed, sex, age, gender identity or expression, marital status, national origin, ancestry, present of past history of mental disability, mental retardation, learning disability or physical disability, including but not limited to blindness.[2]

LGBT individuals enjoy recognized protections under State workplace discrimination law.[3] Furthermore, there are additional federal laws through which an aggrieved party may seek recourse.[4] Thus, under Connecticut law, employers, including school districts, cannot refuse to hire or discharge an employee on any of the above bases.

What happens, however, if an aggrieved party alleges that he or she was not hired because of his or her political beliefs and advocacy? Such is the case of Teresa Wagner, who sought to teach law courses at the University of Iowa College of Law (UI). A staunch conservative Republican and UI alum, Ms. Wagner “previously worked for the National Right to Life Committee, which opposes abortion and euthanasia, and the Family Research Council, which takes conservative positions on social issues.”[5] At the time Ms. Wagner applied for two legal research and writing positions at UI, she was “already working part-time at the law school’s writing center” and “had received positive reviews” for her performance in that capacity.[6] She did very well during the interview process and “her application was well received by the Committee.”[7]

On the other hand, the law school faculty “is viewed as being liberal. Only one out of 50 professors is a registered Republican.”[8] In an email to the dean of UI, the associate dean wrote:

Frankly, one thing that worries me is that some people may be opposed to Teresa serving in any role in part at least because they so despise her politics (and especially her activism about it).[9]

In addition, Ms. Wagner’s “primary, vocal opponent to hiring her” was a professor who “had clerked for Justice Blackmun during the time Roe v. Wade was written, has written tributes to Justice Blackmun and his abortion jurisprudence, and has published legal articles advocating a pro-choice viewpoint on abortion.”[10]

Subsequently, a job offer was extended to an adjunct legal research and writing instructor who was less qualified and “portrayed himself as a liberal to other employees at the Writing Center.”[11] The second position remained unfilled, and Ms. Wagner received word that she was not being hired. She filed a civil rights lawsuit in federal court, alleging UI’s dean discriminated against her in violation of the First Amendment’s right to political speech and association. However, the district court granted summary judgment in favor of UI, thus dismissing the case, citing qualified immunity protection.

However, on appeal, the Eighth Circuit Court of Appeals reversed, finding that “[t]he district court erred in finding that qualified immunity protects [UI’s dean] from liability in her individual capacity.” As the Court noted in part, “[UI’s dean] had several indications that Wagner’s political beliefs and associations may have played a role in the faculty’s hiring process.”[12] Despite such notice, the UI dean failed to hire Ms. Wagner, and her “position as a supervisor does not shield her from liability.”[13]

The trial in this case has already begun, and it will be interesting to see the results. Though Connecticut does not recognize political affiliation as a protected class in discrimination cases, no doubt the outcome of this case may result in widespread implications if the courts find in Ms. Wagner’s favor.

If you are the victim of discriminatory practices and treatment in the workplace, it is imperative that you consult with an experienced employment law practitioner. The lawyers at Maya Murphy, P.C., assist clients in Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, and Westport. If you have any questions, please do not hesitate to contact Attorney Joseph C. Maya. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.

[1] Connecticut General Statutes § 46a-51 et seq.

[2] Connecticut General Statutes § 46a-60(a)(1).

[3] Connecticut General Statutes § 46a-81c.

[4] See, e.g., Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA).

[5] “Lawsuit Pits Political Activism Against Campus Diversity,” by Adam Liptak. January 9, 2012: http://www.nytimes.com/2012/01/10/us/sidebar-lawsuit-against-iowa-law-school-pits-activism-against-diversity.html

[6] “Trial starts in liberal bias lawsuit against former University of Iowa law dean,” by Chris Minor. October 16, 2012: http://wqad.com/2012/10/15/trial-starts-in-liberal-bias-lawsuit-against-former-university-of-iowa-law-dean/?hpt=ju_bn5

[7] Wagner v. Jones, No. 10-2588 at 3 (8th Cir. Ct. June 16, 2011).

[8] Id.

[9] Id. at 7.

[10] Id. at 6.

[11] Id.

[12] Id. at 19.

[13] Id. at 22.

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Did Basketball Powerhouse Force Coach to Resign Due to Her Disability?

Written by Lindsay E. Raber, Esq.

Most people who have lived for some period of time here in Connecticut are amply familiar with the Lady Huskies and Lady Vols fierce decade-long rivalry. Before regular season matches discontinued five years ago, these matchups were the highlight of the season. Thus, fans have come to form a love-hate relationship with Pat Summitt, Head Coach of the Lady Vols who has the most wins of any (both male and female) NCAA basketball coach. It came as a shock to hear on April 18, 2012, after thirty-eight years of coaching, Summitt would be retiring from her post after being diagnosed with early-onset dementia-Alzheimer’s disease just before the start of the 2011-2012 season.[1] “I’ve loved being the head coach at Tennessee for 38 years, but I recognize that the time has come to move into the future and to step into a new role,” explained Summitt.[2]

As it turns out, the decision may not have been entirely that of Summitt.

In a recently released affidavit,[3] Summitt revealed that on March 14, 2012, she met with the University of Tennessee (UT) Athletics Director David Hart, who informed her that she would no longer be the coaching the Lady Vols. Summitt further explained:

This was very surprising to me and very hurtful as that was a decision I would have liked to have made on my own at the end of the season after consulting with my family, doctors, colleagues, and friends and not be told this by Mr. Hart. I felt this was wrong.[4]

UT spokeswoman Margie Nichols denied allegations that Summitt was forced out of her position. “It’s absolutely not true… It was Pat’s idea to become the head coach emeritus. I think she made that really clear at her press conference earlier this year.”[5] Regardless, this leaves many asking: was Summitt forced to resign because of her disability?

Under Connecticut law, employees enjoy a very comprehensive statutory scheme (found here) prohibiting discriminatory practices in the workplace. Unless the employer and its agents (such as administration or management) have a “bona fide occupational qualification or need,” it is a violation of the General Statutes:

To refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual’s race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disability, mental retardation, learning disability or physical disability, including, but not limited to, blindness.[6]

In addition, employees enjoy federal protection of their rights through such legislation as the Americans with Disabilities Act, the Rehabilitation Act, and the Family Medical Leave Act, to name just a few.

Discrimination on the basis of disability or another protected class is unfortunately a common occurrence in the workplace, but its prevalence in no way makes it lawful. If you are a teacher, coach, or any employee and you find yourself being the target of adverse employment action on any of the above bases, it is imperative that you consult an experienced and knowledgeable school or employment law practitioner. Should you have any questions regarding employment discrimination or other education law or employment law matters, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.

[1] “Pat Summitt’s Early-Onset Dementia: Lady Vols Coach Resigns Less Than A Year After Diagnosis.” Published April 18, 2012. Accessed October 5, 2012: http://www.huffingtonpost.com/2012/04/18/pat-summitt-dementia-early-onset-alzheimers-memory_n_1435380.html

[2] Id.

[3] “Affidavit of Coach Pat Head Summitt.” Accessed October 5, 2012: http://www.documentcloud.org/documents/452632-pat-summitts-affidavit.html

[4] Id.

[5] “Pat Summitt Affidavit: Ex-Tennessee Coach Initially Felt Forced Out Of Job Over Early-Onset Dementia,” by Steve Megargee. Published October 3, 2012. Accessed October 5, 2012: http://www.huffingtonpost.com/2012/10/04/pat-summitt-affidavit-tennessee-coach-job_n_1937730.html

[6] Connecticut General Statutes § 46a-60(a). Accessed October 5, 2012: http://www.cga.ct.gov/current/pub/chap814c.htm#Sec46a-60.htm

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What You Need to Know About Non-Compete Agreements

In the current economic environment, understanding your obligations under a non-compete agreement could be essential to finding new employment. In uncertain times, an employee may not understand that not all non-compete agreements are enforceable. Here are seven (7) important things to know about non-compete agreements.

(1) Courts do not view all non-compete agreements equally: Courts view non-compete agreements ancillary to the sale of a business or between partners differently than they view non-compete agreements between an employee and employer. “When employee agrees to be subjected to future work restrictions, he or she does so in order to obtain employment and ordinarily gets nothing in return for giving up this important freedom. Thus the employee is at a great bargaining disadvantage.” CT Cellar Doors, LLC v. Stephen Palamar, 2010 Conn. Super. LEXIS 3247, J.D. of Waterbury, Docket No. UWY-CV-10-5016075-S (2010). Therefore, the courts will view such a non-compete with great scrutiny.

(2) Reasonableness requirement: By definition, a non-compete is a restrictive covenant that prevents employees from competing with their former employers after termination thereby creating a restraint on the free market. Given this, Connecticut courts may find that these covenants are against public policy. Consequently, non-compete agreements are only enforceable if the restraint imposed is reasonable.

(3) Courts consider multiple factors in evaluating the reasonableness of a non-compete: In deciding whether a particular non-compete agreement is reasonable, the court will look to the following factors: “(1) the length of time the restriction operates; (2) the geographical area covered; (3) the fairness of the protection afforded to the employer; (4) the extent of the restraint on the employee’s opportunity to pursue his occupation; and (5) the extent of interference with the public’s interests.” Robert S. Weiss and Associates, Inc. v. Wiederlight, 208 Conn. 525 (1988). The Connecticut Appellate Court has instructed that “the five pronged test is disjunctive; a finding of unreasonableness in any one of the criteria is enough to render the covenant unenforceable.” New Haven Tobacco Co., Inv. v. Perrelli,18 Conn. App. 531 (1989).

(4) Involuntarily termination not required: A prevalent feeling among employees is that if “let go,” a non-compete should not apply. However, this is not the law. When reviewing a non-compete agreement for reasonableness, the Court will not look to whether the employee left his position voluntarily or involuntarily.

(5) Geography: “The general rule is that the application of a restrictive covenant will be confined to a geographical area which is reasonable in view of the particular situation.” Scott v. General Iron, 171 Conn. 132 (1976) (upheld statewide restriction). Geographic restrictions should be “narrowly tailored to the plaintiff’s business situation.” Robert S. Weiss & Associates, Inc. v. Wiederlight, supra, 208 Conn. at 531. In CT Cellar Doors, LLC v. Stephen Palamar, supra, the Court held that a three-year restriction that covered the entire State of Connecticut was unenforceable, unfair and unreasonable restraint of trade and was contrary to public policy. Compare that to Robert S. Weiss and Associates, Inc. v. Wiederlight, supra, where the Supreme Court held that a two-year restriction that covered a 10-mile radius of Stamford, was narrowly tailored and therefore reasonable. See also, Access America, LLC v. Mazzotta, 2005 Conn. Super. LEXIS 2597, J.D. of Middlesex, Docket No. CV-O5-4003389 (2005)(15-mile restriction upheld); compare, Trans-Clean Corp. v. Terrell, 1998 Conn. Super. LEXIS 717, J.D. of Fairfield, Docket No. CV-97-0348039-S (1998) (60-mile restriction held unreasonable).

(6) Duration: Connecticut courts have frequently enforced non-compete periods of a year or more. However, the courts have stated that the reasonableness of time and geographic restrictions in non-compete agreements are intertwined and “that broad geographic restrictions may be reasonable if the duration of the covenant is short, and longer periods may be reasonable if the geographic area is small.” Van Dyck Printing Company v. DiNicola, 43 Conn. Supp. 191 (1993), affirmed per curiam 231 Conn. 272 (1994) (one year); Robert S. Weiss & Assoc. v. Wiederlight, supra (two years); Hart Nininger & Campbell Assoc. v. Rogers, 16 Conn. App. 619 (1988) (two years); Scott v. General Iron & Welding Co., 171 Conn. 132 (1976) (five years); Torrington Creamery, Inc. v. Davenport, 126 Conn. 515 (1940) (two years).

(7) Forfeiture Clauses: Forfeiture clauses differ from non-compete agreements, in that the employee does not make an express promise not to compete, but rather agrees to a forfeiture of benefits if the employee engages in competition with its former employer. Despite this difference, the Connecticut Supreme Court has held that “a covenant not to compete and a forfeiture upon competing are but alternative approaches to accomplish the same practical result.” Deming v. Nationwide Mut. Ins. Co., 279 Conn. 745 (2006). Consequently, forfeiture clauses are subject to the reasonable requirement of non-compete agreements.

Before signing a non-compete agreement, speak to an attorney who is well versed in the law surrounding restrictive covenants and employment contracts. If you have already signed the non-compete agreement, contact an attorney before pursuing a course of conduct that might violate a non-compete clause. A violation of a non-compete may result in legal action brought against you by your former employer, whether or not such agreement is enforceable. Situations involving non-compete agreements are very fact specific, requiring case-by-case analysis. If you have any questions relating to your non-compete agreement or would like to discuss any element of your employment agreement, please contact Leigh H. Ryan, Esq. by phone at (203) 221-3100 or via e-mail at LRyan@Mayalaw.com.

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What You Need to Know About Severance Packages

During these economic times, many companies big and small, are facing the hard reality of layoffs. As hard as it is for companies, it is even harder for employees. Faced with no job and a bare economy, accepting a severance package might seem like to best choice. But before signing anything, it is important to understand the basics of the severance package and the potential rights that might be relinquished in the process.

(1) Time to Consider the Severance Package: A prevalent misconception is that all employees are entitled to twenty-one (21) days to review severance package offers. Unfortunately, that is not the case. In the case where the employer is only offering a severance package to one employee, and that employee is under the age of forty (40), there is no specific time to review the documents that is required by law. However, as the severance package must be made “knowingly and voluntarily,” that allows the employee some time to consider the severance agreement. However, there is no statutory minimum.

If, however, the employee being offered the severance agreement is forty (40) years or older, they are protected by the Age Discrimination in Employment Act (“ADEA”) of the Older Workers Benefit Protection Act (“OWBPA”). By law, when only one employee is offered the severance agreement and a release of ADEA claims is included, the employer must provide the employee with twenty-one (21) days to review and consider the proposed severance agreement. Moreover, if the employer and employee engage in negotiations, the consideration period commences on the date of the employer’s final offer.

If more than one employee is terminated at or around the same time, it is considered a “group layoff.” By law, when a severance agreement is offered as part of a group layoff, and a single employee is over the age of forty (40), and a release of ADEA claims is included, then every employee regardless of age must be given forty-five (45) days to consider the agreement.

(2) Release of Claims: Most severance agreements contain a release of a variety of claims, including claims you may have based upon your age, race, national origin, gender, disability, relegation, among others. It may also include a release of all claims, whether known to you or not at the signing of the agreement. However, the United States Equal Employment Opportunities Commission (“EEOC”) has held that, although the severance agreement may restrict the employee’s ability to file a lawsuit, the release cannot restrict the rights of an employee to file a charge of discrimination with the EEOC, nor can the severance agreement limit an employee’s right to testify, assist or participate in an investigation, hearing or other proceeding conducted by the EEOC. Furthermore, the EEOC has declared that an agreement cannot waive an employee’s rights regarding acts of discrimination that occur after the signing of the agreement.

(3) Seven (7) Day Revocation Period: When a severance agreement contains an ADEA release of claims, by law, the employer must provide you with seven (7) days to revoke the agreement after signing it. This seven (7) day window cannot be waived or changed by either party.

(4) Ability to Consult with an Attorney: Severance packages generally contain more than just the release of ADEA claims, but also claims under Title VII of the Civil Rights Act, Americans with Disabilities Act, Employee Retirement Income Security Act, retaliation, whistle blowing, breach of contract, invasion of privacy, among others. Given the breadth of the claims released, before the signing of a severance agreement, it is extremely important to consult with an attorney prior to its execution. Moreover, when the severance agreement contains a release, the agreement must specifically advise the employee to seek the advice of any attorney. Faced with financial distress because of the layoff, you may not be able to think objectively concerning your rights and options. It is best to consult an attorney.

(5) Consideration: Consideration is required for every agreement. That means that an employee must receive something of value in exchange for giving up certain rights. That “something of value” must be above and beyond what the employee would otherwise be entitled to.

(6) Ability to Negotiate: Despite the “take it or leave it” undertones of an employer, generally, many employers will negotiation severance on some level. Given that, there is also a risk that an employer will revoke the offer of severance if negotiation is attempted. Your chances of negotiating successfully increase if there is a claim that your particular severance package is not fair in light of your industry, your position, or the circumstances of your employment. Additionally, the negotiations do not need to focus on the dollar amount connected with the severance agreement. Employers might be willing to extend insurance coverage, disability benefits, or other items.

(7) Gather All Information: Before deciding to accept, negotiate, or reject a severance package, it is important to understand completely what is being offered to you, including compensation, benefits and insurance. If you are in an industry that provides for deferred stock options or bonus, it is important to understand whether you would still be entitled to it. You should gather information concerning your employer’s welfare plans, health plans, vacation and sick leave policies, as well as any structured bonus plans or stock options. If the severance package is only offering you what you would be entitled to, the agreement may lack adequate consideration.

(8) Restrictive Covenants: Many employers will place some kind of restrictive covenant into the severance package. These range from confidentiality clauses, to non- disclosure agreements, to non-solicitation agreement, to non-compete agreements. Therefore, it is important to understand how signing the severance agreement may restrict your ability to find new employment.

Before you sign a severance agreement, it is important to fully understand your rights and the consequences of accepting the offer. The attorneys at Maya Murphy, P.C., have years of experience in all sectors of employment law. If you have any questions relating to your severance agreement, please contact Leigh H. Ryan, Esq. by phone at (203) 221-3100 or via e-mail at LRyan@Mayalaw.com.

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