The U.S. Securities and Exchange Commission took administrative action recently against two companies in separate matters involving severance agreements.
Employers are urged to act now to ensure the severance agreements they use are appropriate for their needs. Contact any member of Gunster's labor and employment law practice for more information.
The two provisions under fire by the SEC can be found in many typical employment-severance agreements:
Confidentiality clause
In the first matter, a building-products distributor based in Atlanta asked employees accepting severance pay to sign an agreement with a confidentiality clause requiring notice to the company if the employee becomes required by law to disclose confidential company information.
The SEC found this infringed upon federal whistleblower protections. On Aug. 10, 2016, the SEC ordered cease-and-desist proceedings and imposed $265,000 in sanctions. Additionally, the employer was required to amend its severance agreements to include a section titled “Protected Rights” containing broadly worded language regarding the receipt of compensation for information from any government agency for a report of suspected law violations.
Waiver of rights
The waiver of rights clause used in both matters prohibited employees from receiving monetary compensation for reporting or participating in the investigation of a potential law violation.
Again, the SEC found this infringed upon federal whistleblower protections – and was in conflict with the aims of the Dodd-Frank Act, which specifically allows financial incentives to encourage whistleblowers to report potential law violations to the SEC. On Aug. 16, 2016, the SEC ordered cease-and-desist proceedings and imposed a financial penalty of $340,000 against the California-based health insurance provider.
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Read the entire client alert now: SEC attacks standard severance agreements – companies would be well advised to take notice and adjust accordingly (TheSecuritiesEdge.com, 8/26/16)
