I learned something last week. If you read a youngster’s text messages, you’ll notice 
a complicated system of abbreviations, symbols, and symaphores that, when translated with your 7-year-old’s assistance, become more-or-less coherent English sentences. Anyway, I learned “SMH” means “shaking my head,” which is exactly what I do these days when I hear the words “Donald Sterling.”
Sterling made himself cannon fodder for anyone in sight, and our own Josh Sudbury ably tackled the issue last week. So why go back to the well? Quite simply, Mr. Sterling is the ol’ gift that keeps on giving.
Last week, DuJour.com managed to get a line in to Sterling. Catching the attention of a guy who is the subject of just about everyone’s morbid fascination is a nice little coup for any publication, so they went for it: They wanted to know Sterling’s thoughts about V. (Vivian?) Stiviano, his … correspondent on the infamous tapes (she calls herself his “Silly Rabbit,” but that’s beyond my ken). So, Mr. Sterling, Ms. Stiviano made tapes that have brought you public ridicule. They may cost you your team. What – say – you?!?!
“I wish I had just paid her off.”
Lovely.
Nevertheless, there is a kernel of a takeaway here for human resources professionals. If we give Mr. Sterling the enormous benefit of a very profound doubt, we can imagine he was referring to severance pay that he could have offered Ms. Stiviano. In that case, any employer offering severance needs to get a separation agreement in return. For separation agreements to make a clean break, though, you can’t treat them as boilerplate, and failing to have your counsel update them regularly or review them individually can stir trouble.
The potential topics are many, but here are a few words to the wise:
- Don’t overreach. There are certain employment rights that cannot be waived, especially things like Fair Labor Standards Act (FLSA) and other wage claims. Furthermore, the Equal Employment Opportunity Commission (EEOC) and other agencies may view prohibitions against filing claims as unlawful (they’ve been litigating this issue recently, in fact). Appropriate drafting can give you a satisfactory resolution.
- Don’t cancel out another agreement. Before signing a separation agreement with any employee, make sure you know the other agreements the company may have with this person (especially restrictive covenants). If those other agreements need to survive termination, be very careful about language in the separation agreement that purports to supersede prior agreements.
- Know the law. I am still surprised that folks overlook the Older Workers Benefit Protection Act in their separation agreements. Also, if you’re doing an agreement in a state that’s relatively new to you, get some assistance.
And, finally, with a nod to Mr. Sterling, you should probably consider a paragraph requiring the employee to return all property and work product. Oh, yeah – and a confidentiality provision, too.
