In California, I signed a general release agreement. The agreement includes a waiver of section 1542. Can I still file wrongful termination claim?
In my group, 50% of all employees who are older than 40 were laid off. Is this information useful?
Employment / Labor Attorney
Probably not, but an attorney will have to review the specific language of the release to know for sure. Usually, employers seek a waiver of each and every claim an employee could possibly file, in exchange for some benefit, most often money. If you signed such a release -- and again, an attorney would have to read it to know for sure -- then you have waived your right to file a wrongful termination in violation of public policy claim.
Note that in California, you cannot waive any right to workers' compensation benefits or unemployment benefits. Also, to waive a claim of age discrimination, the waiver must meet the requirements of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. (ADEA), which includes the Older Workers Benefit Protection Act (OWBPA). These requirements include the right to review the agreement for at least 21 days before signing and the right to revoke the agreement for 7 days after signing; there are other requirements, too.
The high percentage of employees over 40 who were laid off is useful, but not by itself. What percentage of employees under 40 were laid off? And if you have indeed signed a valid waiver, then the information is useful, but not to YOU, because you can no longer sue.
Employment law is complicated and fact specific. You may wish to speak with an experienced plaintiffs employment attorney. To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org, and you can search for attorneys by location and practice area.
I hope you can resolve your situation and wish you the best.
*** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***
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Workers' Compensation Lawyer
I agree. The General Release is to give an agreement finality, but Public Policy would have to exclude future events that had not yet occurred. If you were fired AFTER signing the 1542 Release, it is unlikely that a court would view the release as an unrestricted right to discriminate against you in the future. However, if the acts occurred before the Release, the agreement would normally be viewed to be inclusive.
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If you signed a general release which included a waiver of Civil Code section 1542, most likely you will not be able to bring any litigation in the future, including a wrongful termination claim.
However, as Attorney Spencer indicates, an attorney would have to review the entire release agreement to confirm this. There are certain types of claims such as workers' comp benefits and unemployment benefits which you cannot waive.
The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author (who is only admitted to practice law in the State of California). For specific advice about your particular situation, consult your own attorney.
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