With jurisdictions across the country slowly easing up on rigorous closures and other restrictions, employers are itching to resume operations and reclaim some semblance of normalcy. The Equal Employment Opportunity Commission (“EEOC”) has updated its guidance for employers dealing with the COVID-19 pandemic. The following FAQs address the EEOC’s furlough/layoff related guidance.

The EEOC’s Updated Guidance: Furlough/Layoff Related Guidance

Under the EEOC, what waiver responsibilities apply when an employer is conducting layoffs?

• Unique rules apply when an employer offers employees a severance package in exchange for a general release of all discrimination claims against the employer. More information is available in EEOC’s technical assistance document on severance agreements.

When is a waiver valid?

• Generally, a waiver in a severance agreement is valid when an employee knowingly and voluntarily consents to signing it.
• If an employee alleges that the waiver is not valid because he did not sign it knowingly and voluntarily, the analysis of the knowingly and voluntarily requirement is dependent on the statute under which suit was, or could be, brought.
• Moreover, a valid agreement also must: (1) offer some sort of consideration, such as additional compensation, in exchange for the employee’s waiver of the right to sue; (2) not require the employee to waive future rights; and (3) comply with applicable state and federal laws.

Can I still file a charge with the EEOC if I believe that I have been discriminated against based on my age, race, sex, or disability, even if I signed a waiver releasing my employer from all claims?

• Yes. While your severance agreement may use broad language to describe the claims you are releasing (i.e., “all claims”), you are within your rights to file a charge with the EEOC if you believe you were discriminated against while you were employed or if you believe you were wrongfully terminated.

If I file a charge with the EEOC after signing a waiver, will I have to return my severance pay?

• No. This is true even if your severance agreement contains provisions that attempt to prevent you from filing a charge with the EEOC, because this sort of provision is unenforceable. You cannot be required to return your severance pay (or other consideration) before filing a charge with the EEOC.

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