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Negotiating and Drafting Settlement Agreements

For ACC-Michigan Chapter

Presented by:Marlo Johnson Roebuck | Jackson LewisHeidi T. Sharp | Burgess & Sharp

February 17, 2015

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About Jackson Lewis

750+ attorneys in 54 locations nationwide

Represents management exclusively in every aspect of employment, benefits, labor, and immigration law and related litigation

Current caseload of over 6,500 litigations and approximately 415 class actions

Founding member of L&E Global

U.S. News & World Report’s 2014 Law Firm of the Year (Litigation – Labor & Employment)

U.S. News & World Report’s 2015 Tier 1 Ranking in Employment Law – Management; Labor Law – Management; Litigation – Labor & Employment

Marlo Johnson Roebuck is a shareholder at Jackson Lewis. For over a decade, she has represented employers on the full spectrum of laws governing the workplace, including but not limited to Title VII, the Age Discrimination in Employment Act, and the Americans with Disabilities Act.

Her representation includes employment advice and counseling as well as employment litigation.

Ms. Roebuck is an information privacy professional, advising clients on the protection of employee data and social media issues. The International Association of Privacy Professionals (IAPP) has certified her as a Certified Information Privacy Professionals (CIPP).

She is also a member of the Firm’s Corporate Diversity and Counseling practice group and trains employers and human resource professionals on maintaining compliance with EEO policies.

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About Burgess & Sharp

Burgess & Sharp is a law firm specializing in Civil Rights and Labor & Employment Law.

Heidi T. Sharp litigates on behalf of her clients in federal and state court, the U.S. Equal Employment Opportunity Commission, the Michigan Department of Civil Rights, and the Michigan Tax Tribunal.

In 2013 she developed and submitted discovery protocols to Macomb County Business Court Judge John Foster for use by business court practitioners. In October 2013 the protocols were instituted in the business court and shared with other business court judges throughout the Great Lakes for their use.

Ms. Sharp is the Labor & Employment Chair (2012-present) of the Macomb Bar Association, and sits on the Michigan Association for Justice’s Labor & Employment Committee.

Ms. Sharp is also corporate counsel of several local well-known businesses, and a local union.

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Prepare for Settlement Negotiations

Mediation?

Timing

Do your research, is there anything you can use in your favor?

Any impediments to settlement

Settlement range/authority

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Employee’s Perspective

Mutual non-disparagement

Future participation in litigation

Compromising language is okay, agreement with the situation is not

Goal is to get paid, will always want date by which check is to be delivered and will not close the case until money is paid in full

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Employer’s Perspective

Confidentiality; avoiding copycats

Non-disparagement

No rehire

Tax indemnification

Dismissal/closure

Concerns about the EEOC

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EEOC

Refusal to close charge without copy of private settlement agreement

If settle privately with CP and no right to sue is issued, EEOC can continue to investigate, sue on behalf of CP, and seek monetary relief

“Employee agrees that if such an administrative claim is made, Employee shall not be entitled to recover any individual monetary relief or other individual remedies.”

No general release; only release statutes raised

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EEOC

No rehire—retaliatory on its face

“Employee shall not apply in the future for employment with [Insert Company Name] because of, among other things, irreconcilable differences with [Insert Company Name].”

No confidentiality—want to report as monies it has recovered for “victims” of discrimination

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Unemployment Insurance Concerns

The Impact of the Unemployment Insurance Integrity Act and Michigan’s Revised Employment Security Act on Settlement Agreements

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Other Provisions

Claims Not Released. Employee is not waiving any rights he/she may have to: (a) his/her own vested accrued employee benefits under [Insert Company Name]’s health, welfare, or retirement benefit plans as of the Separation Date; (b) benefits and/or the right to seek benefits under applicable workers’ compensation and/or unemployment compensation statutes; (c) pursue claims which by law cannot be waived by signing this Agreement; (d) enforce this Agreement; and/or (e) challenge the validity of this Agreement.

Employee further affirms that Employee has no known workplace injuries or occupational diseases.

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Ensuring Enforcement

Liquidated damages provisions

Cooperation

Breach

No legal requirement for W-9

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Questions?

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Thank You!

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Workplace law. In four time zones and 53 major locations coast to coast.