An employer can still be sued for breaking federal law even if an employee signs a waiver to receive a severance package. Waivers of this kind often include a release of claims, meaning the employee agrees not to sue the employer in exchange for the severance. However, there are important limitations and conditions:
- Validity of the Waiver: For a waiver to be valid, it must be "knowing and voluntary." This generally means that the waiver must be clearly written, specific to the claims being waived, and not misleading. The employee should also have been given sufficient time to consider the waiver and advised to consult with an attorney.
- Protections Under Federal Law: Certain rights cannot be waived, especially those protected under federal law. For example, rights under laws such as the Family and Medical Leave Act (FMLA), Fair Labor Standards Act (FLSA), or the Occupational Safety and Health Act (OSHA) are often non-waivable. Additionally, the right to file a charge with the Equal Employment Opportunity Commission (EEOC) cannot be waived.
- Illegal or Unenforceable Waivers: If the waiver includes unenforceable terms or was procured through coercion or fraud, it may not hold up in court.
- Age Discrimination Claims: Special rules apply under the Older Workers Benefit Protection Act (OWBPA) when waiving age discrimination claims. Among other requirements, the employee must be given at least 21 days to consider the waiver and a 7-day revocation period.
- Severance Agreements: If the severance agreement does not comply with specific legal requirements, it may be invalid concerning certain claims