The Equal Employment Opportunity Commission (“EEOC”) has recently taken a stance on agreements between employers and employees. Specifically, they want to protect employees rights in agreements with employers that waive potential claims and release the employer from liability. The EEOC has entered into litigation with a number of employers seeking to prevent these agreements.
The EEOC has notably taken issues with the following types of agreements used by employers:
- Covenants not to sue (They could potentially prohibit employees from filing charges);
- Provisions where the employee acknowledges it had not previously filed charges before signing the agreement;
- Language prohibiting the employee from assisting others in bringing claims against employer;
- Obligating the employee to participate in a lawsuit on behalf of the employer;
- Language preventing the employee from making negative comments to the EEOC about the employer;
- Confidentiality provisions disallowing disclosure of information such as wages, benefits, personnel information, and duties of the employee;
- Provisions requiring the employee to pay the employer’s attorneys’ fees for breaching the agreement.
Employers need to be cautious about the language they are including in agreements with employees. They should seek counsel to ensure all proper steps are taken when drafting the language. It is important to ensure that the agreements do not explicitly prohibit an employee from filing a charge. Additionally, there should be a disclaimer stating that no provision of the agreement is intended to interfere with the employee’s right to file a charge with the EEOC.