Posts tagged with "knowingly and voluntarily"

What To Know About Your Severance Package

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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 the 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.  There is no statutory minimum amount of time.

If, however, the employee being offered the severance agreement is forty (40) years or older, he or she is 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, religion, 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 negotiate 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 agreements, 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 Joseph C. Maya, Esq. by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com.

Guilty Plea Found Invalid Where Defendant Was Left in Dark Regarding What Constitutes a Larceny and Robbery

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In a criminal law matter, the Appellate Court of Connecticut reversed and remanded a case where the defendant did not knowingly and voluntarily enter into a plea agreement.

Case Background

This case arose from an incident that occurred on August 20, 2004. A man robbed a bank at knifepoint, securing $15,000 in cash, before escaping in a vehicle driven by the defendant. Police soon located the duo along with the stolen money. The defendant was charged with conspiracy to commit robbery in the first degree and larceny in the first degree in violation of General Statutes §§ 53a-48, 53a-134(a)(2), and 53a-122.

Guilty Plea Made Unknowingly

On February 21, 2006, the defendant sought to enter a guilty plea to these charges. During a plea canvass conducted by the judge, the defendant stated that her defense attorney did not discuss the nature and elements of the charges she faced: “No, I don’t think I heard about what the state had to prove.” The defense attorney did not refute this contention, and the court did not seek from the defendant’s attorney “any assurance that he had, in fact, explained to the defendant the elements of the crimes to which she was pleading guilty.”

Though the court adequately read to the defendant the elements of conspiracy, it failed to properly set out the elements of both larceny and robbery. Nonetheless, the court accepted the defendant’s guilty plea and sentenced her to twelve years of incarceration, suspended after seven years, with five years of probation. The defendant appealed, arguing that she did not knowingly and voluntarily enter into her plea agreement.

When a defendant decides to plead guilty, he or she waives numerous constitutional rights, such as the right to a trial by jury. Therefore, a critical due process requirement is that a guilty plea must be made knowingly and voluntarily, which includes apprising the defendant not just of the rights being waived but also the essential criminal elements of the charges faced. Defense counsel is “generally presumed to have informed the defendant of the charges against him,” though this presumption may be overcome if the record shows that counsel failed to so inform. Should this presumption not apply, proper waiver may still be established if the court itself explained all of the elements.

Court’s Ruling

In this case, the Appellate Court found that the record showed “some positive suggestion that the defendant’s attorney had not informed the defendant of the elements of the crimes to which she was pleading guilty.” It noted that during the canvass, the defendant said she did not know what the State had to prove, and her counsel did not counter this statement. As such, the presumption was not applicable.

The Appellate Court further held that the trial court failed to apprise the defendant of the essential elements of larceny and robbery. Though the court did read to the defendant what first-degree larceny and first-degree robbery encompassed, but failed to explain what acts constituted a robbery or larceny under Connecticut law. Therefore, the case was reversed and remanded with directions to the lower court to withdraw the guilty pleas.

Written by Lindsay E. Raber, Esq.

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When faced with a charge of conspiracy, larceny, or robbery, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Superior Court Denies Motions to Suppress in DUI Case, Finding Defendant’s Constitutional Rights Were Not Violated

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Case Background

This case arose from an incident that occurred on April 6, 2008. A police officer received word from dispatch that a restaurant drive-thru employee called in to report a customer, the defendant, who appeared to be under the influence of alcohol. The officer was given specific information about the vehicle and told that this was the third such report received. The officer promptly located the defendant’s vehicle and initiated a traffic stop.

When the officer approached the vehicle, he observed beer cans on the back floor of the defendant’s car in plain sight. Some of these were empty, and all were seized as evidence. After additional officers arrived on the scene, they conducted field sobriety tests and then arrested the defendant and brought her to police headquarters.

There, the officers advised the defendant of her Miranda rights and had her review a Notice of Rights form, which included information regarding implied consent and the chemical alcohol test refusal. The defendant was told she could call an attorney, but she was unable to successfully make contact with one. After fifteen minutes passed, officers advised the defendant that she had to decide whether or not to take the test, so she refused.

The Charges

The defendant was charged with operating a motor vehicle while under the influence (OMVUI) of alcohol in violation of General Statutes § 14-227a. She moved to suppress statements she made as well as evidence collected from the motor vehicle stop and during a search of her car. In support of her motions, the defendant argued that police violated her rights under the Fourth and Fifth Amendments of the U.S. Constitution.

The Fourth Amendment protects people from unreasonable searches and seizures, and generally police must have a warrant to conduct a search. However, there are four recognized, narrow exceptions where the warrantless search of a vehicle is reasonable, including “when there was probable cause to believe that the car contained contraband or evidence pertaining to a crime.” Officers may seize contraband that it finds in plain view, and “such observations give rise to probable cause justifying a search of the vehicle.”

The Fifth Amendment, in part, prohibits compelled self-incrimination. The well-known recitation of Miranda warnings stem from the construction of this Amendment, and two conditions are required before an officer must invoke this warning: custody and interrogation. Waiver of Miranda rights must be made knowingly and voluntarily, which must be proven by the State by the preponderance of the evidence.

Under Connecticut law, in an action where a defendant is charged with OMVUI, the jury may draw permissive inferences from the fact that the defendant refused to submit to a breathalyzer test. In addition, identifiable citizen informants are presumptively reliable, and officers are justified when they assume that the informant is providing truthful information. Because of the pervasive state interest in preventing drunk driving, officers do not have to wait for the defendant to drive erratically or cause an accident before pulling them over.

The Court’s Decision

In this case, the Superior Court of Connecticut adjudicating the case denied all of the defendant’s motions. It found that police had a reasonable and articulable suspicion to stop the defendant, based on the information provided by the restaurant employee, an identifiable citizen informant. The seizure of the beer cans, which were in plain view, was permissible. In addition, because there was no interrogation at the police station, the defendant was not compelled to incriminate herself. Rather, pursuant to General Statutes § 14-227b(b), police officers have the explicit authority to request that a defendant arrested for OMVUI sub.

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When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence), an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Written by Lindsay E. Raber, Esq.