Why have separation agreements garnered so much attention of late?
As the cost and consequences of employment litigation have increased over time, employers have increasingly conditioned severance payments on the execution of agreements that release claims for harassment, discrimination, personal leave and the like. Plaintiffs’ attorneys, in turn, have increasingly raised arguments that such releases even when signed and paid for are unconscionable or otherwise defective, such that their clients can keep the monies provided and still sue their former employers. At the same time, governmental agencies, such as the Equal Employment Opportunity Commission, have aggressively argued that employers cannot use releases to prevent departing employees from bringing complaints to their attention for investigation. In the absence of clear guidance from the Supreme Court on these issues, the lower courts are split on a number of these issues, creating a confusing and potentially costly patchwork of rulings concerning what claims employees can be asked to waive an
