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Sudden severance switch raises bias red flags

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in HR Management,Human Resources

Here’s something to consider if you suspect an employee you want to terminate might sue for some form of discrimination. Offering a severance payment conditioned on waiving the right to sue could backfire if that’s not what you usually do. It may actually be viewed as evidence that you discriminated and are eager to cover it up.

Recent case: Ronald worked for a nonprofit organization with more than 10,000 employees. He took FMLA leave for knee surgery.

When he returned to work, he thought his boss treated him differently than before.

For example, he was suddenly excluded from some meetings, had his parking spot moved farther away from the entrance with no explanation, found some of his job duties reassigned to another employee and was told he would have to work in an office in the basement from then on. Finally, he was informed his job was being eliminated.

Ronald was then offered a severance payment—if he would agree not to sue under either the FMLA or the Age Discrimination in Employment Act. He refused and sued, alleging age discrimination and FMLA retaliation.

The court said his claims could go forward. It added that, for his FMLA claim, the fact that he was offered a severance package for signing away his right to sue (no other employee had ever been offered those terms) was potential evidence that the employer itself believed the termination was tied to his use of FMLA leave. (Straffieri v. North­­western Human Services, No. 12-1612, ED PA, 2013)

Final note: Talk to your attorneys about instituting a routine waiver of the right to sue in order to receive a severance payment. Make the waiver broad to include all potential litigation so it doesn’t look like you are worried about being sued for any particular violation.

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