Dallas lawyer Michael Maslanka writes in Texas Lawyer about how to manage layoffs, including suggestions for drafting litigatable releases (hint: simpler is better, and no release is better than a spurned one).
Here’s the drill: If offering two weeks severance only, forget the release, and just give the money. A release offered and refused is admissible as evidence of consciousness of guilt. …
A more fundamental release challenge is that lawyers assume one size fits all; they believe a release used 10 years ago is good to go for today, and they try to sound smart by drafting densely written, 20-page releases. It’s as if there was one release drafted in the misty past, handed down from generation to generation, and used again and again without question.
Here’s the deal:
- Make it simple with bullet points and check marks, and boil it down to a few pages. The goal is to get the employee to sign it, not show legal virtuosity.
- Write in active voice, not passive. Releases saying that the employee has been advised to consult an attorney are invalid; the release must say that the company advises the employee to consult.
- Think ahead: Extinguish any outstanding issues on reimbursements owed and commissions due; but don’t extinguish all obligations, such as an existing covenant not-to-compete, with a merger clause.
(Extra paragraphing and bullets added.)