RIF/Age discrimination

Lola815

I just went to a seminar where the lawyer strongly suggested that you have employees who are termed because of RIF sign a waiver saying that they will not reaply at your company. This way if you hire a younger worker down the road the one who was termed won't come after you with an age discrimination law suit. Does anyone do this? Do you have a form I can look at for ideas? We have never done this but it sounds like a good idea.

Any help would be great.

Theresa Gegen TX

This waiver, like any other, would have to be supported by consideration. In otherwords, you will have to pay to get it. Also, this type of provision could anger a long term employee into looking into filing a claim.

I generally only use these if the employee has sued for discrimination. In a settlement, the employee will agree not to reapply at the company. There have been some cases where an employee has sued, settled for a large amount, then reapplied for a job, and claimed retaliation when they didn't get the new job (ergo another lawsuit).

If the employee is a good employee, who you wouldn't mind having back if conditions improved and there was a job opening that fit his skills, I wouldn't include that type of waiver.

Also, remember that an age waiver in a rif scenario has particularily onerous requirements for the employer (long waiting period to consider waiver, must supply information about effected group, etc). I suggest you hire an attorney to help you develope the type of agreement that would apply to your situation.

Good Luck!!

Before you add some stock language to a waiver

Carol CA

I wouldn't go there. We have had a few RIF's, and when business picked up again we wanted to hire back some of our experienced workers. Just because they were caught in the RIF didn't mean they weren't good workers.

If you start picking and choosing who you would allow to reapply and who you don't want to reapply you are opening the door to discrimination. We have all employees sign a Release & Settlement Agreement at the time of the RIF and give some extra compensation in exchange for it. Without specifying that they won't reapply, it does indicate they won't sue the company. It's worked for us!

Lola815

Thanks for the opinions. I don't think we are going to do it unless we talk to our lawyer first. It isn't something that I felt good about when I heard about it. And I agree, there are some employees that we would hire back if things picked up.

RYA in Buford

If an employee has a good record, he/she should be permitted to reapply when or if things things pick up. A good way to go is to have them sign a general release agreement releasing the company of any claims the employee may have either now or in the future. If there is more than one employee terminated due to a reduction in force and that employee has the same job title, include something like an "Exhibit A" in the release stating only the ages and job titles of other employees laid off. This is a good way of proving before the fact that there was no age discrimination taking place. If there were no other terms, then state that in the Exhibit.