Legal Translation Services Can Help Make Your Employment Separation Agreement Enforceable
We’ve blogged about the importance of legal contract translation services for businesses of all sizes. When the time comes to terminate an employee you would typically consult with legal. You would review the various templates of other separation agreements. You would edit and polish the language of the separation agreement and release of claims that your company will use moving forward. You’re all set, right? Not so fast.
Settling on the language of an employment separation agreement and release of claims is only half the battle when it comes to properly terminating an employee. The manner in which you have an employee review and sign a separation agreement can be just as important, if not more important, than the language itself.
A relatively recent case in New Jersey, Carey v. NMC Global Corp. (N.J. App. Div. 2013), serves as a cautionary reminder to employers that they must use best practices when having terminated employees sign a release.
Carey v. NMC Global Corporation
A. Factual Background
In this case, the plaintiff Carey worked for NMC as a dispatcher. Carey was a high school graduate who had been in the workforce for about 15 years, and he had worked for NMC for approximately three years. He requested, and was granted, a two-month leave of absence for pneumonia. The day he returned to work, NMC’s office manager and vice president met with Carey and told him that he was being terminated. They then presented Carey with a separation and release agreement.
Carey maintained that the vice president told him that he could either sign the agreement and receive two weeks of severance pay, or not sign it and receive nothing. Carey was given five minutes to review the agreement. Neither the office manager nor vice president recommended that he seek the advice of an attorney.
Carey felt pressured to sign the agreement because the vice president was glaring at him while he was reviewing the document. Also, the agreement contained language regarding the New Jersey Law Against Discrimination and other employment statutes, but Carey did not understand the agreement. Without consulting an attorney and because he felt pressured, Carey signed the release at that meeting.
A few days later, Carey spoke to an attorney and decided that he had made a mistake in signing the separation and release of claims agreement. He immediately wrote to NMC, telling the company not to pay him the two weeks of severance because he did not agree to the terms of the separation and release agreement. NMC ignored Carey’s letter and deposited the two weeks pay into his account.
Carey then returned the severance pay and filed a lawsuit against NMC, alleging disability discrimination and retaliation for taking a medical leave.
B. Courts Must Consider the Totality of the Circumstances
Although the lower court summarily dismissed Carey’s lawsuit based on the fact that he signed the separation agreement, the appeals court saw the case differently and looked beyond the mere signing of the document. Rather, the appellate court considered the circumstances surrounding Carey’s decision to sign the agreement.
Specifically, the New Jersey appellate court noted that it must look at whether Carey’s execution of the agreement was knowing and voluntary. To make that determination the court stated that it has to look at the “totality of the circumstances,” including many factors such as Carey’s level of education and business experience, the time he was given to consider the agreement, whether Carey had any say in the terms of the agreement, the clarity and understandability of the agreement, whether Carey was encouraged to consult an attorney, and whether he actually did consult an attorney.
Based on that standard, the court came to the following conclusions about Carey’s case:
• Carey only had a high school education, though his 15 years in the workforce may compensate somewhat for a lack of college education.
• Carey was only given five minutes to consider the agreement, and he justifiably felt pressure because the vice president was glaring at him.
• Carey had no say in the terms of the agreement.
• Carey stated that he did not understand the terms of the agreement.
• Carey did not consult and attorney, and his employer did not encourage him to do so.
All of those conclusions weighed in favor of Carey’s assertion that he did not knowingly and voluntarily sign the employment separation agreement. Accordingly, the appeals court reversed the decision of the lower court.
Best Practices In Obtaining Voluntary Releases, Particularly from Non-English Speaking Employees
A. In General
The Carey case is instructive because it demonstrates to employers what not to do in procuring a release from an employee. Rather, employers need to keep the following in mind when offering a separation agreement to any employee.
• Keep the separation agreement short (2-4 pages) and easy to read, with limited legalese.
• The agreement should indicate that the employee was given a reasonable time to review the agreement and was encouraged to consult with an attorney.
• Indicate whether and to what extent the employee was allowed to negotiate the terms of the agreement.
B. Best Practices for Terminating Non-English Speaking Employees – Use a Legal Translation Service
The Carey case is extremely helpful in demonstrating how to deal with employees who are not fluent in English, because Carey, the English-speaking individual, himself stated that he did not understand the separation agreement. Accordingly, for him, it may as well have been written in a different language.
Employers should know their workforce. If they have employees who are not sophisticated in business matters and/or have limited English skills, then the employer should consider the following:
Strongly recommend attorney help. The employer should request that the employee consult with an attorney first before signing a release. If the employee does not want to consult an attorney, then the employer should document that in writing, to avoid issues later.
Strongly recommend legal translation help. The employer may want to consider having a legal translation service on call when a release is offered to a terminated employee. That way, the employer can ensure that the release agreement was read to the employee in his or her primary language to avoid any confusion. That fact should also be memorialized in writing.
Have employee termination release forms translated into the languages of non-English-speaking employees. If the employer knows that a good portion of the workforce does not speak English, then the employer can get the help of a legal translation service to translate their release agreement to avoid confusion.
Legal Translation Services Should Be Part of an Employer’s Best Practices When It Comes to Employment Separation and Release Agreements
Given the potential for misunderstanding when it comes to asking a terminated employee to sign a release, having a legal translation service on call can solve a lot of confusion up front. Consider contacting legal document translation service All Language Alliance, Inc. to learn more about how we can help your business with translations of separation agreements and release of claims into Spanish, Portuguese, Chinese, French, Korean, German, Russian, and other languages. Don’t be penny wise and pound foolish. Getting the help from the trusted legal translation company will save you a great deal of time and money by avoiding lawsuits down the road.
This law language blog article should not be construed as legal advice. You should always consult an attorney regarding your specific legal needs.