Recycling Not Always Good

Green is good. Recycling is good, right? Not always. Paper, cans, plastic, and bottles are wonderful to recycle; however, releases and other legal agreements are not good to recycle. Recent caselaw has focused on the changing nature of release agreements and the need to ensure that, when they are used, they reflect these changes.

CVS Pharmacy entered into approximately 50 separation agreements between 2009 and 2011 that the Equal Employment Opportunity Commission (EEOC) recently challenged as violating Title VII of the Civil Rights Act. The challenged agreements used the following commonplace clauses: a non-disparagement clause, a general release of all claims, a confidentiality clause of employer information, notification of lawsuits, and an agreement not to file EEOC charges. According to the EEOC, these sections interfered with an employee’s right to file a charge of discrimination with the agency or to participate and assist with an investigation the agency might conduct.

Based on this case and others, we have revised our FYI on Waiver and Release Agreements and our waiver and release agreement samples. This is a good reminder that even standard, acceptable language can be challenged and that rather than recycling old agreements the best practice is to check for changes and incorporate them into a new agreement.