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EEOC Attacks Common Severance Agreement Language
By Bryan E. Pieper The U.S. Equal Employment Opportunities Commission (“EEOC”) has filed a lawsuit against CVS Pharmacy, Inc., claiming that a severance agreement CVS has employees sign violates the employees' rights to communicate with the EEOC and to participate in EEOC investigations. Click here for the full lawsuit. Many of the provisions targeted by the EEOC are considered fairly typical in employee severance agreements. As is common in severance agreements, the employer, CVS, agrees to give the employee severance benefits, conditioned on the employee making certain promises in exchange. The EEOC takes issues with those required promises, specifically identifying the following provisions:
- The employee releases any and all claims he or she may have against CVS;
- The employee agrees not to file any claims again CVS in any court or agency;
- The employee agrees not to make any statements that disparage CVS or its business;
- The employee agrees not to disclose to any third party any of CVS's confidential information, which is defined to include personnel information;
- The employee agrees to cooperate with CVS by notifying CVS promptly if the employee is contacted regarding any lawsuit or administrative proceeding against CVS; and
- If the employee breaches the severance agreement, CVS will be entitled to an immediate injunction, and the employee will reimburse CVS for any attorneys’ fees incurred enforcing the agreement.
- • Enjoin CVS from continuing to use the current version of the severance agreement;
- • Reform the agreement to comply with Title VII, both for individuals who have already signed it and for those who sign it in the future;
- • Require CVS to issue a corrective communication informing its workforce of its right to file an EEOC charge and to initiate and respond to communication with the EEOC;
- • Require CVS to provide its management with additional training regarding an employee's Title VII right to file charges and participate in EEOC investigations; and
- • Provide a window of 300 days for any former employee who has signed the severance agreement to file a charge of discrimination with the EEOC.