Hotline

Employee's Waiver of EEOC Rights Doesn't Invalidate Separ- ation Agreement and Release: The Third Circuit has ruled that where an older worker signs a release promising not to pursue any lawsuits against his former employer, this is still a valid waiver despite the fact that the agreement contained an otherwise invalid clause that prohibited the worker from bringing any charge before the Equal Employment Opportunity Commission. Wastak v. Lehigh Valley Health Network, No 02-2111 (June 11).

The court rejected the argument that such a provision renders the entire release agreement invalid since the right to file a charge with the EEOC is protected by the Age Discrimination in Employment Act (ADEA) and cannot be waived. The court stated that while the ADEA clearly prohibits employers from enforcing such charge-filing bans, 'there is no indication that the mere presence of that contractual language would void an otherwise knowing and voluntary waiver.'

Post-Termination Release Not Invalidated by FMLA: The Fifth Circuit has held that an employee's release of all claims against the company under any federal law or regulation is not invalidated under a Family Medical Leave Act (FMLA) provision that bars prospective waiver of substantive FMLA rights. Faris v. Williams WPC-I Inc., No. 02-50446 (May 27).

The Fifth Circuit refused to invalidate a release signed by a fired worker who relinquished his right to pursue all legal claims in return for a month's pay. Department of Labor regulation 29 C.F.R. '825.220(d) states that an employee cannot waive, nor may an employer induce an employee to wave, his or her rights under the FMLA. The court opined, however, that 'rights,' as defined by the FMLA, includes only substantive rights (such as leave), but not the right to sue for damages for an alleged violation of the law. It should be noted that the Fifth Circuit has also enforced releases of ADEA and Title VII claims, reasoning that public policy supports the voluntary settlement of these claims.

Court applies attorney client privilege to PR firms: The District Court for the Southern District of New York has ruled that conversations between a public relations firm and lawyers representing the target of a grand jury investigation are protected by the attorney-client privilege, as long as they relate to the handling of the client's legal problems. The court further held that the privilege can also extend to conversations between the target and the public relations firm, but only to the extent that the conversations are 'for the purpose of obtaining legal services.' In re Grand Jury Subpoenas Dated March 24, 2003 Directed to (A) Grand Jury Witness Firm and (B) Grand Jury Witness, M11-189 (J. Kaplan June 2).

The court stated that a lawyer's representation of a client, particularly in high-profile cases, can extend well beyond in-court representation and dealing with the media in such a case, 'is not a matter for amateurs.' The court observed that 'lawyers may need skilled advice as to whether and how possible statements to the press ' ranging from 'no comment' to detailed factual presentations ' likely would be reported in order to advise a client as to whether the making of particular statements would be in the client's legal interest.' Such a service would require the disclosure of 'at least some non-public facts, as well as the lawyers' defense strategies and tactics, free of the fear that the consultants could be forced to disclose those discussions.' The court set forth the legal standard in such cases as '(1) confidential communications (2) between lawyers and public relations consultants (3) hired by the lawyers to assist them in dealing with the media in cases such as this (4) that are made for the purpose of giving or receiving advice (5) directed at handling the client's legal problems are protected by the attorney-client privilege.'

Consequential Damages Not Available Under ERISA: The Second Circuit has held the remedies outlined in the Employee Retirement Income Security Act are exclusive and leave no room for judicially created remedies, meaning that under the Act, the trustees of a local union pension fund could not seek consequential damages from an actuary which underfunded the union's pension fund. Gerosa v. Savasta & Co. Inc., 02-9005 (May 19).

The appeals court relied primarily on the Supreme Court's decision in Mertens v. Hewitt Assocs., 508 U.S. 248 (1993), which held that non-fiduciaries who take part in a breach cannot be held liable for ordinary money damages. The Supreme Court said there was 'strong evidence that Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly.' The appeals court noted, however, that it was 'limiting its holding to ERISA's civil remedial provisions.' The court stated that it 'would also continue to carry out Congress's intent that we develop a federal common law of ERISA based on principles developed in evolution of the law of trusts.'

Employee's Waiver of EEOC Rights Doesn't Invalidate Separ- ation Agreement and Release: The Third Circuit has ruled that where an older worker signs a release promising not to pursue any lawsuits against his former employer, this is still a valid waiver despite the fact that the agreement contained an otherwise invalid clause that prohibited the worker from bringing any charge before the Equal Employment Opportunity Commission. Wastak v. Lehigh Valley Health Network, No 02-2111 (June 11).

The court rejected the argument that such a provision renders the entire release agreement invalid since the right to file a charge with the EEOC is protected by the Age Discrimination in Employment Act (ADEA) and cannot be waived. The court stated that while the ADEA clearly prohibits employers from enforcing such charge-filing bans, 'there is no indication that the mere presence of that contractual language would void an otherwise knowing and voluntary waiver.'

Post-Termination Release Not Invalidated by FMLA: The Fifth Circuit has held that an employee's release of all claims against the company under any federal law or regulation is not invalidated under a Family Medical Leave Act (FMLA) provision that bars prospective waiver of substantive FMLA rights. Faris v. Williams WPC-I Inc., No. 02-50446 (May 27).

The Fifth Circuit refused to invalidate a release signed by a fired worker who relinquished his right to pursue all legal claims in return for a month's pay. Department of Labor regulation 29 C.F.R. '825.220(d) states that an employee cannot waive, nor may an employer induce an employee to wave, his or her rights under the FMLA. The court opined, however, that 'rights,' as defined by the FMLA, includes only substantive rights (such as leave), but not the right to sue for damages for an alleged violation of the law. It should be noted that the Fifth Circuit has also enforced releases of ADEA and Title VII claims, reasoning that public policy supports the voluntary settlement of these claims.

Court applies attorney client privilege to PR firms: The District Court for the Southern District of New York has ruled that conversations between a public relations firm and lawyers representing the target of a grand jury investigation are protected by the attorney-client privilege, as long as they relate to the handling of the client's legal problems. The court further held that the privilege can also extend to conversations between the target and the public relations firm, but only to the extent that the conversations are 'for the purpose of obtaining legal services.' In re Grand Jury Subpoenas Dated March 24, 2003 Directed to (A) Grand Jury Witness Firm and (B) Grand Jury Witness, M11-189 (J. Kaplan June 2).

The court stated that a lawyer's representation of a client, particularly in high-profile cases, can extend well beyond in-court representation and dealing with the media in such a case, 'is not a matter for amateurs.' The court observed that 'lawyers may need skilled advice as to whether and how possible statements to the press ' ranging from 'no comment' to detailed factual presentations ' likely would be reported in order to advise a client as to whether the making of particular statements would be in the client's legal interest.' Such a service would require the disclosure of 'at least some non-public facts, as well as the lawyers' defense strategies and tactics, free of the fear that the consultants could be forced to disclose those discussions.' The court set forth the legal standard in such cases as '(1) confidential communications (2) between lawyers and public relations consultants (3) hired by the lawyers to assist them in dealing with the media in cases such as this (4) that are made for the purpose of giving or receiving advice (5) directed at handling the client's legal problems are protected by the attorney-client privilege.'

Consequential Damages Not Available Under ERISA: The Second Circuit has held the remedies outlined in the Employee Retirement Income Security Act are exclusive and leave no room for judicially created remedies, meaning that under the Act, the trustees of a local union pension fund could not seek consequential damages from an actuary which underfunded the union's pension fund. Gerosa v. Savasta & Co. Inc., 02-9005 (May 19).

The appeals court relied primarily on the Supreme Court's decision in Mertens v. Hewitt Assocs. , 508 U.S. 248 (1993), which held that non-fiduciaries who take part in a breach cannot be held liable for ordinary money damages. The Supreme Court said there was 'strong evidence that Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly.' The appeals court noted, however, that it was 'limiting its holding to ERISA's civil remedial provisions.' The court stated that it 'would also continue to carry out Congress's intent that we develop a federal common law of ERISA based on principles developed in evolution of the law of trusts.'