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Can I Sue for Overtime after Signing Separation/Release Agreement?

Los Angeles, CA |

I was asked to resign from my recent employer. I was offered 3 weeks severance pay. I feel I have been incorrectly classified as an exempt employee and therefore am owed overtime (equivalent to more than 3 weeks of pay). I heard that by signing the separation/release agreement, I am only waiving my ability to sue in California court, not Federal court. So in essence, I can still sign the agreement, get the 3 weeks of severance, and sue for overtime. Is this true?

Actual agreement looks like it was copied and pasted from here: http://www.sec.gov/Archives/edgar/data/1511737/000119312512201585/d307868dex1017.htm

Attorney Answers 3


  1. If you want a thorough review to decide if you have a case for unpaid wages, you need to see an attorney who regularly handles those cases. A response on Avvo does not constitute a legal opinion. Also, most labor lawyers and employment lawyers will give you a free consultation to evaluate your facts and documentation. If you have a good case, they will normally take the case without an upfront fee, since fees are part of the claim against an employer who does not pay proper wages. Try Avvo's "find a lawyer" tab for a lawyer in your area who handles these cases.

    Questions that your posting don't answer but cry out for an attorney who has experience: (a) Is the waiver valid? (b) What is included in the waiver and what is not? (c) Does this waiver prohibit you from filing in State Court? What about the Labor Commissioner? (d) How much money is the difference that is at issue if you should have been paid wages?

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  2. The general answer to your general question is that if your severance agreement contained an enforceable general release of all claims, and you signed the agreement and took the severance payment, and the payment was "new money" meaning not money already owed to you at the time of the agreement, then it is likely you have released the company of any an all claims you have for additional compensation.

    If you believe you have a significant claim for overtime, it might make sense for you to have an attorney review the severance agreement to see if there are any ways to undue it. If you think that is where you want to go, you should locate and consult with an experienced employment law attorney as soon as possible to explore your facts and determine your options. I would suggest you look either on this site in the Find a Lawyer section, or go to www.cela.org, the home page for the California Employment Lawyers Association, an organization whose members are dedicated to the representation of employees against their employers.

    Good luck to you.

    This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.


  3. In the U.S. Eleventh Circuit, where I practice, no agreement resolving an overtime claim under the FLSA is valid unless approved by the Court or the U.S. Department of Labor. You may wish to contact an attorney who specializes in wage and hour claims in California and determine whether the Courts in California have a similar requirement. Good luck.