Jurisdiction: New York
Separation and Release of Claims Agreement (NY)
This is a New York-specific Separation and Release of Claims Agreement. Separation and release of claims agreements are sometimes referred to as a release, waiver and release, or severance agreement. This New York-specific separation and release of claims agreement specifies certain terms of an employee’s separation from employment. Such terms include a release of legal claims against the employer in exchange for a benefit the employee is not otherwise entitled to receive. This agreement assumes no other entitlement to separation pay or benefits, whether by prior agreement, group plan, employer practice, or for any other reason.
Using a separation and release of claims agreement provides several benefits, including:
- Minimizing the risk of litigation by the employee following separation.
- Binding the employee to new post-termination restrictive covenants to which the employee was not previously bound.
- Reminding the employee of continuing obligations under any existing restrictive covenants and having the employee re-acknowledge those obligations.
Separation and release of claims agreements can be used regardless of the reason for an employee’s separation from employment. This agreement may be used for voluntary or involuntary separations and for single terminations or group terminations. For example, a group termination may be a reduction in force. However, separation agreements must meet certain specified requirements when used with employees aged 40 or older to release claims under the federal Age Discrimination in Employment Act (ADEA). Employers must meet additional requirements when terminating these employees as part of a group termination program or offering an exit incentive to two or more employees.
Some claims under federal and New York law cannot be released regardless of any benefit offered in exchange for the release. Other claims can be released only under particular circumstances.
Many provisions in separation and other agreements that historically were considered routine and boilerplate have also been scrutinized by the National Labor Relations Board (NLRB). Recent NLRB decisions and guidance suggest that non-disparagement and confidentiality provisions, even when imposed on individuals no longer employed, may be viewed as interfering with employees’ Section 7 rights under the National Labor Relations Act (NLRA).
Confidentiality provisions in settlement and severance agreements have also come under recent scrutiny by securities regulators, such as the Securities and Exchange Commission (SEC).
In the wake of the #MeToo movement, several jurisdictions including New York have passed or are considering laws that restrict an employer’s ability to require employees to abide by confidentiality provisions when settling sexual harassment claims. Employers entering into a separation agreement to resolve claims or allegations of sexual harassment should keep abreast of these laws and the requirements in those jurisdictions where they employ workers.
This Agreement is intended for use with a departing employee who has not yet filed any charges or legal claims against the employer. If any charges or lawsuits are pending, the employer should use a settlement and release agreement.
Important Legal Disclaimers
Helix Compliance, LLC (“Helix”) is not a law firm, and Helix’s employees and representatives are not acting as your attorney. Helix provides a technology-based platform for those seeking to prepare their own legal documents. Using Helix’s system-generated documents does not create an attorney-client relationship between you and Helix or any Helix employee or representative. Therefore, your communications with Helix do not constitute privileged communications. Likewise, neither the attorney-client privilege nor the work product doctrine protect your communications with Helix. Helix is not your lawyer in any way, shape, or form.
Using Helix’s documents is not a substitute for the expertise of an attorney. Thus, you should not use Helix’s system-generated documents as a substitute for legal advice. Additionally, you should not construe Helix’s system-generated documents as legal advice. Helix does not review any information provided to it for legal accuracy or sufficiency. Helix does not apply the law to the facts of your situation, and Helix does not draw legal conclusions. Further, Helix does not provide opinions about your selection of documents. Users seeking legal advice should consult a qualified licensed attorney.
Even though Helix seeks to ensure that document content is up-to-date, laws change rapidly. Therefore, Helix does not guarantee that each document is completely current. The law differs in each legal jurisdiction and may be applied differently depending on your factual circumstances. If you are unsure whether your situation requires a specific document or whether the document’s contents are legally sufficient for your specific purposes, you should consult a qualified licensed attorney.