Should You Sign a Release When You Lose Your Job?
Waiving your right to sue a former employer: what it means and when not to sign on the dotted line.
If you are fired or laid off, your employer may ask you to sign a release: a contract in which you agree to waive (give up) your right to sue the company in exchange for some benefit, typically severance pay. Before you give up your legal rights, you should make sure you understand the release, and carefully consider whether you are being offered enough money to give up any legal claims (e.g., a wrongful termination lawsuit) you may have against the company. Read on to learn more about what to consider if you're asked to sign a release when you lose your job. (For more information on issues related to job loss, check out Nolo's Losing or Leaving a Job FAQ.)
What Does a Release Cover?
A release is an agreement not to sue; it waives your right to sue and company and "releases" your employer from legal liability for claims you may have against it. A release may be as broad or as narrow as the parties agree to make it. For example, in a narrow release you might waive your right to sue the company only for certain events or issues, such as legal claims relating to your layoff or to the payment of commissions that are in dispute. Or, in a broad release, you might waive your right to sue over any and all claims arising out of your employment. (Employers typically want the release to be as broad as possible, to protect themselves from any possible legal exposure.)
Legally speaking, a release can cover only events that have already happened when the release is signed. For instance, if you sign a release on the day you are laid off, then your former employer defames you by maliciously providing false and harmful information when prospective employers call for a reference, the release wouldn't prevent you from bringing a defamation lawsuit. Because the events underlying the suit occurred after you signed the release, the terms of the release don't cover those claims, and you can still sue over them. (Before you file a lawsuit, read Nolo's article When Should You Sue?)
A release may cover legal claims you didn't know about when you signed, as long as the events underlying the claims already occurred. For example, let's say you worked as an assistant manager at a fast food restaurant. You routinely worked 50 or more hours a week and never received overtime, because you were classified as a salaried manager. After you are laid off and sign a release, a former coworker brings a class-action lawsuit against the restaurant, claiming that all of its assistant managers were really hourly workers and should have been paid overtime for their extra hours. Your release may prohibit you from participating in the lawsuit, even if you didn't realize when you signed it that you might have a legal claim to overtime.
A release that waives your right to sue over unknown claims like these often has to include specific language to that effect, as required by state law. If the release doesn't explicitly give up your right to sue over claims you don't know about when you sign it, a court might set aside the release and allow you to bring a lawsuit for these claims.
Issues to Consider If You're Asked to Sign a Release
If your employer asks you to sign a release, you might feel a lot of pressure to sign right away -- especially if you have to sign in order to get your severance pay. But before you put your name on the dotted line, ask yourself these questions:
- What are you giving up? A release asks you to give up your right to sue, and you should know what that right is worth before you agree to waive it. Do you have any potential legal claims arising out of your employment? (For help figuring this out, check out Nolo's other articles on Employee Rights.) What about possible wrongful termination claims? (For information on wrongful termination, see Nolo's articles on Losing or Leaving Your Job.) If you have questions about legal claims against your employer, a quick consultation with an employment lawyer might help you figure things out.
- What are you getting? A release has to give you something in exchange for your agreement not to sue -- something that you aren't already entitled to receive. If company policy already promises you a week of severance pay for every year with the company, you must receive more in exchange for the release. Similarly, the company can't hold up something you've already earned until you sign. If, for example, your state law requires employers to pay out unused vacation, your employer can't force you to sign a release in order to get the money for the vacation time.
- Do you understand the release? Often, releases are written by the company's lawyers, which means they might include plenty of legalese and boilerplate language. They also might include terms that you aren't entirely comfortable with, such as a confidentiality clause or a noncompete agreement attempting to limit who you can go work for. If you don't understand what you're getting, what you're giving up, and what else you're agreeing to, or you want to know whether you might be able to negotiate something better, talk to an employment lawyer.
- Will you have a chance to change your mind? If your employer is asking you to waive the right to sue over age discrimination claims under the Age Discrimination in Employment Act (ADEA), you are legally entitled to 21 days to consider the release before signing it -- and another seven days after you sign to change your mind and revoke the agreement. Some employers give everyone a chance to consider the agreement and revoke it after signing, just to make sure that a court doesn't later find the employee was coerced into signing. If you aren't being asked to waive age discrimination claims and the agreement doesn't include a revocation clause, you will be bound by the release once you sign it, unless you can prove that it is illegal or invalid.
- Do you need more information? If you don't fully understand what you're being asked to sign or what legal claims you may have against the company, we strongly suggest that you talk to a lawyer before signing. Although it's possible to overturn a signed release, it can be very difficult. The better course of action is to make sure you know what you're giving up before you sign a release.
For more information on what to expect when you lose your job -- and all other key legal issues related to employee rights -- get Your Rights in the Workplace, by Barbara Repa (Nolo). You can also visit Nolo's Lawyer Directory to find and speak with an employment law attorney in your area.