Given its current strategic implementation plan and evolving theories aimed at undermining waiver clauses in separation agreements, which are supposed to discourage worker participation in litigation against former employers, it is likely that the EEOC will continue its efforts to challenge waiver clauses in separation agreements. In addition, the EEOC — which currently has a Republican majority — will likely be more worker-friendly when Trump-appointed Commissioner Janet Dhillon`s term expires in July 2022. Accordingly, employers should take stock of their separation agreements at micro and macro-financial level in order to ensure compliance with the law and minimise the risk of the EEOC notifying the legality of the agreement. The following general clauses deserve special attention. An employment contract is an agreement between an employer and an employee that sets the conditions of work and employment. A contract may be concluded in writing or orally. In response, the EEOC changed its strategy. Instead of arguing that the illegal clauses contained in the separation agreements constituted retaliation in themselves, the Agency began to argue that the inclusion of waiver clauses by employers, which could deter former employees from filing complaints or participating in agency proceedings, constitutes a model or practice of “resistance” to the full enjoyment of Title VII rights. However, like its theory of retaliation itself, the agency`s “resistance theory” has largely failed in court. For example, in 2014, the Northern District of Illinois found that “resistance.” . requires an act of retaliation or discrimination. E.E.O.C v. CVS Pharm., Inc., 70 F. Supp.3d 937, 939 n.2 (N.D.
Ill. 2014) (summary judgment in favour of the employer, if, among other things, the use of the “no recourse” clause is challenged because EEOC did not arbitrated the claim). In other words, the insertion of a waiver clause by the employer into a separation agreement was not entirely contrary to Title VII. The following year, the Seventh Circuit Court of Appeals upheld the District Court`s decision and confirmed that Title VII “does not create a broad enforcement capacity for the EEOC to pursue non-discriminatory employment practices that it does not like.” E.E.O.C v. CVS Pharm., Inc., 809 F.3d 335, 341 (7th Cir. 2015) (“Conditioning benefits on promises not to file a complaint with the EEOC alone is not sufficient to justify countervailable “retaliation” under Title VII).”). An employment contract cannot provide for less than the legal minimum set out in the following sections: while separation agreements generally vary from employer to employer, general clauses include non-cooperation (prohibition on employees cooperating with a person or organization to bring proceedings in a national or federal court) and an obligation not to bring legal proceedings (prohibition on filing an Action in justice by workers, b. accusation or complaint against their former employer). For the purposes of this section, these general clauses are referred to as “waiver clauses”.
Initially, the EEOC challenged waiver clauses on the grounds that their inclusion in separation agreements in itself constituted retaliation. In the 80s and 90s, the EEOC theory gained strength in court. In 1987, the Fifth Circuit Court of Appeals ruled that “[a] waiver of the right to bring a complaint against public order.” See E.E.O.C. v. Cosmair, Inc., L`Oreal Hair Care Div., 821 F. 2d 1085, 1090 (5th Cir. 1987). Then, in 1996, the First Circuit Court of Appeals found non-cooperation clauses that prohibited employees from communicating with the EEOC and stated that “a worker`s right to communicate with the EEOC” “is not a right that an employer can buy from an employee.” E.E.O.C.
. . .