“If I signed a severance (or separation) agreement, can I still sue my employer for unlawful termination?”

Question: Dear Alan: I am an engineer with over 25 years of experience. I am 62 years old. In 2008 I worked very hard, and did very well: I published three papers in my field of expertise, and even submitted two inventions with my managers. For five years, I got talented reviews, and was described as a “Talented Engineer,” although I was also described as having “deficiencies in communication.”

In May 2009, I was diagnosed with cancer and had surgery for it. In July, during recovery, I received “unfriendly emails” from my manager, and in November I was placed on a Performance Improvement Plan (“PIP.”) I responded that the PIP was not an accurate or fair presentation of the facts, and this month (January) I filed a formal complaint against my supervisor. This was not the first complaint I had filed about my supervisor, or his improper conduct.

I was laid off shortly after that, and offered severance of two weeks pay and six months medical insurance. I signed the severance agreement.

Can I now file a lawsuit against my employer for unlawful termination?

San Jose, California

Answer: Odds are you cannot. This is because the severance agreement you signed almost surely contained a release of all claims you might have against your employer, and a promise never to sue regarding anything having to do with your employment or its termination.

The “basic deal” of almost all severance agreements is that (a) the employer gives the employee some transition assistance (that is, money, benefits, and sometimes other things, such as outplacement assistance or career coaching) and, in return, (b) the employee makes several promises to the employer. These are usually never to sue, not to disparage, to return company property, not to give company confidential information to anyone else, and other such things. Since you signed your severance agreement, you are almost surely bound not to bring any kind of suit against your employer, or your supervisor.

However, if you did not have an attorney review your severance agreement before you signed it, and are willing to give back your severance, you may have a chance to void the agreement if you went to court and told the judge, in effect, that you did not know the ramifications of your agreement. You would have a better argument to do this than most people, because your employer knew you had “deficiencies in communication.” While not all judges would rule in your favor, I think that you could have a pretty good chance of winning.

You would be wise to call your city’s Bar Association for a referral to a local attorney experienced in employment matters.

Thanks for visiting our blog; come back soon. My best to you.

Best, Al Sklover

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