Could it be considered as duress having to sign a no suit agreement to get severance?
I was discharged today and I was shown a severance check for $20,000. I was then told that I could get it today if I signed an agreement to not sue the company. I have been keeping notes on what I feel has been forms of age and disability discrimination by my boss. That along with what I also felt was sex discrimination against males in the department seemed, at times, like enough that I could sue her and the company for discrimination.
With the poor job situation here in California, I felt that I have to have the severance. It is a large sum of money to me and makes a difference in whether my family and I can get along for several months instead of several weeks. Because of that I felt that I had nowhere to go other than sign the agreement. They did give me the chance to take the agreement home to read over it, but the outcome would be the same, I'd have to sign it to provide some security for my family. But, now any recourse I thought I had, for some of the humiliation that I was put through, seemingly has gone away with me being held hostage by the need for the money. It doesn't seem fair, but I know the law isn't always about being fair. Still, I'd like to see if you can help me clarify whether this could be classified as durress.
Thanks,
Bob Spriggs
Answers (2)
First, any meaningful comments to your question will turn on specific facts. The MEL board is not really set up to handle the kind of detailed analysis that is needed in your situation. MEL works best for short, specific questions that allow for short, specific answers. Perhaps more importantly, anyone can read the discussions on MEL so they are not confidential. Your employer or whomever you are in a dispute with can read everything written here.
If you are having second thoughts about the agreement you signed, you MAY have some recourse if you are 40 years old or older and the employer failed to comply with the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. (ADEA), which includes the Older Workers Benefit Protection Act (OWBPA). There are a number of requirements here, including allowing 21 days to review the agreement before signing and 7 days to revoke the agreement after signing.
Employers often buy their way out of potential lawsuits by offering money in exchange for the employee's promise not to sue for any of the potential claims identified in the agreement. Employers know quite well how vulnerable employees are when suddenly faced without any income, and they use this to their advantage. In most circumstances, these are perfectly lawful. However, an employee and employer cannot agree to waive workers' compensation claims or unemployment claims in such an agreement.
Employment law is complicated and fact specific. You may wish to speak with an experienced plaintiffs employment attorney. To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org, and you can search for attorneys by location and practice area.
I hope you can resolve your situation and wish you the best.
____________________________________________
Marilynn Mika Spencer
The Spencer Law Firm
2727 Camino del Rio South, Suite 140
San Diego, CA 92108
(619) 233-1313 telephone // (619) 296-1313 facsimile
mspencer@spencerlawoffice.com
posted by Marilynn Mika Spencer | Feb 26, 2012 6:50 PM [EST]
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