Questions on employment release agreement

[txdogmom]

What is the name of your state? Texas

A friend was laid off today and was given an employment release document to sign but has a couple of questions as to what the following means. Could someone explain in laymen's terms?

#1: "(My friend) agrees that she has no present or future right to employment with the released parties and that she will not apply or seek consideration for employment engagement or contract with the release parties."
Does this mean she can't apply for employment with them in the future?

#2: "(My friend) agrees that she shall refrain from all conduct, verbal or otherwise, that disparages or damages or could disparage or damage the repeputation, goodwill or standing in the community of any of the released parties."
Does this means she can't say anything bad about them (as in her opinion)?

Note: this employer is a hotel and she was a manager for them; the business has been down since 9/11 and she was let go for economic reasons, not performance. (her position was eliminated.)

Thanks for the clarifications.

 

[I AM ALWAYS LIABLE]

What is the name of your state? Texas

A friend was laid off today and was given an employment release document to sign but has a couple of questions as to what the following means. Could someone explain in laymen's terms?

#1: "(My friend) agrees that she has no present or future right to employment with the released parties and that she will not apply or seek consideration for employment engagement or contract with the release parties."
Does this mean she can't apply for employment with them in the future?

#2: "(My friend) agrees that she shall refrain from all conduct, verbal or otherwise, that disparages or damages or could disparage or damage the repeputation, goodwill or standing in the community of any of the released parties."
Does this means she can't say anything bad about them (as in her opinion)?

Note: this employer is a hotel and she was a manager for them; the business has been down since 9/11 and she was let go for economic reasons, not performance. (her position was eliminated.)

Thanks for the clarifications.

My response:

Where is the compulsion for her to sign this crap in the first place? Are they holding her paycheck hostage? Tell her to tell them to "stick your agreement in your ear - - now give me my final paycheck!"

If they refuse to pay her, she can make a report to the Department of Labor, and then THEY will take care of her employer!

IAAL

 

[Beth3]

"#1: "(My friend) agrees that she has no present or future right to employment with the released parties and that she will not apply or seek consideration for employment engagement or contract with the release parties."
Does this mean she can't apply for employment with them in the future?" Yes.

"#2: "(My friend) agrees that she shall refrain from all conduct, verbal or otherwise, that disparages or damages or could disparage or damage the repeputation, goodwill or standing in the community of any of the released parties."
Does this means she can't say anything bad about them (as in her opinion)?" Yes, but it's unlikely the employer would take any legal action unless she's really saying things that are harming them. If she just tells her family, for example, that she thinks company management are all ()&%*&%$^+&, nothing will come of that.

Is your friend being offered a reasonable severance package in exchange for signing this document? If she's not, then there's no reason or inducement for her to do so.

 

[txdogmom]

First, thanks for your responses so far.

She was let go today (Jan. 14th). She is being paid her vacation as regular pay so that her last day of employment is Jan. 30th. They told her she has all her benefits (including flex spending) in effect until Jan. 31st. After that, she needs to go on Cobra.

She was offered one week's salary for every year that she was there = 4 weeks. It will be given in a lump sum (which means Uncle Sam takes an even bigger bite than usual.)

So, to restate what you've said so far:

Her options are:
1. Tell them to stuff it and not sign the agreement. The most likely event will be she will not get her severance.
Or
2. sign the thing, get the 4 weeks of pay (gross), kiss off ever working for them again and she also gives up her right to express any opinion or state any fact that disparages the company.
Right?

 

[Beth3]

Those are her options.

Unless she had planned on applying there again or was looking forward to disparaging the company (in which case she could be sued for slander whether she signs the agreement or not), then she might as well take the four weeks pay and sign the thing. Any taxes that are overwithheld because it's a lump sum payment she'll get back when she files her 2004 tax return.

 

[txdogmom]

Thanks for your replys. My friend contacted the GM and the statement will be stricken from the agreement. He said the agreement was "a standard form from corporate" and he did not read every line. Before she returns tomorrow to sign the agreement, a new one will be executed to remove the employment clause. The "disparaging remarks" one will remain but she didn't push on it in the first place so its ok.


This may be a stupid question but, what the heck, here goes:

Can you waive your first ammendment right to free speech by signing this type agreement? Don't you have a right to state your opinion (flattering or unflattering)? Can you just sign it away?

My friend is not contemplating telling anyone anything. I am just curious about the strength of these agreements.

 

[Ramoth]

The FIrst Amendment refers to government control over speech. Since your friend doesn't work for the government, it doesn't apply. Besides, if she wants to say bad things about the company all she has to do is give the severance back.

 

[Beth3]

Ditto. The 1st Amendment gives her the right to criticize the government, not her employer.

 

[hexeliebe]

At the risk of inviting the wrath of some casual (and not so casual) observers, this is a topic that I have waited to see brought out in this thread.

Although, on the face of it, this seems like a valid agreement (contract) between the company and your wife, given the right circumstances and the right amount of persuasion, it could be contested were your wife, in a fit of menopause or anger, to say something detrimental about the company in the guise of 'opinion'.

A contract is basically an agreement between two or more people which creates an obligation to do, or not do, something. The agreement creates a legal relationship of rights and duties. If the agreement is broken, then the law provides certain remedies.

For a contract to be legally enforceable, not only do all the parties to the contract have to get something in return, but they must also suffer a detriment. In other words, one cannot contract to give someone else $500 unless the other person gives up something in return.

In this case, it could be argued that although the company is getting consideration in the form of silence, your wife receives nothing that would not have already been hers in the role of employee without the contract.

A contract is also not legally enforceable that goes against public policy. Therefore, the requirement that your wife give up her right of free speach, although not originating from a government body, has in the past been interpreted as against public policy, thus making the contract voidable by the party injured.

Another key point is that when writing a contract, it is important to remember a central principle to contract law - terms of a contract will be construed against the drafter of the contract. Thus, any ambiguities or uncertainties will be resolved against the writer.

While this is meat for the fireplace discussion, only your wife can make the decision to sign or not to sign. However, if she were to utter some remark such as "I hated working there" or "That place made me sick" I personally would not worry too much.

If, however, she said "That company is stealing the stockholders blind" then that goes to a whole different scope and should be avoided.

<EDITED> On point, the 1st amendment says nothing about giving citizens the right to speak against the government. It simply says that the GOVERNMENT shall make no laws abridging the right of free speech. That speech can be about a company, individual, cause, the government or naked women with staples in their bellies.

 

[cbg]

"In this case, it could be argued that although the company is getting consideration in the form of silence, your wife receives nothing that would not have already been hers in the role of employee without the contract."

Her consideration is the four weeks severance pay. That is not required by law and I didn't see anything in the post that says there's a contract requiring it.

 

[hexeliebe]

Now cbg, did I say it was required? Nah, but the case CAN be made, and very easily, that others have been given the severence under the same circumstances.

And although it is not required, as I totally agree, the point here is the practice past and present, of awarding severence under the same terms and conditions.

Remember, we're not talking employment law here. This is contracts. And as a contract, past performance CAN be used to show pattern of behavior.

 

[cbg]

Ah, but did the "others" you are hypothesizing receive the severance without signing the agreement? I'm willing to bet they did not; that kind of an agreement is standard in order to receive severance these days.

 

[hexeliebe]

Ahhhh, and that is the rub.

And as for being normal, that's why I retired at 45. I HATE WORKING FOR A LIVING