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Employment Law Partner, Marc E. Bernstein, Weighs in on Employee Waivers and Releases, Ratification, and the Tender Back' Rule

November 14, 2012

By MARC E. BERNSTEIN

In this BNA interview, Marc E. Bernstein, Employment Law partner, discusses the use of waiver and release agreements to limit employment discrimination and other claims by former employees, as well as ratification issues and the "tender back" rule, which may arise in the enforcement of these contractual provisions.

Bernstein recently represented the company in Nicomedez v. AIG, a case in which the U.S. District Court for the Southern District of New York ruled that a former employee who signed a release agreement after being laid off by AIG could not later sue the company for disability discrimination. While the employee argued that she signed the release under duress, the court found that she ratified the agreement by retaining the severance money paid in exchange for executing it for seven months.

The Nicomedez decision was important for several reasons, Bernstein says. "Companies use release agreements all the time," and this decision "finds that employee claims of mental instability, economic duress, fraud, and the like will not withstand summary judgment if the employee holds on to the severance payment," he says. ...