121.7 Waivers

[See also, section 717]

The Complainant made a voluntary and knowing waiver of her right to bring an employment discrimination complaint against the Respondent under the Wisconsin Fair Employment Act. There was no showing that she was induced to sign the agreement through any fraud. The Complainant was aware of facts sufficient to lead her to suspect age discrimination at the time of her termination, and the release did not hide the fact that the Respondent was seeking to protect itself from any possible age discrimination claims. Moreover, the Respondent did not obtain the Complainant’s termination in exchange for the benefits it was giving her under the agreement; the termination was something the employer (in the absence of any contractual right to a term of employment) had the power to carry out regardless of the agreement. What the Respondent obtained was the release of claims in exchange for the benefits it gave the Complainant, and there was no fraud in connection with that exchange. The Complainant had the opportunity to consult with an attorney of her own choosing. She was given forty-five days to consider the release agreement. Following execution of the agreement, she was given seven days to revoke her acceptance of the agreement. Semandel v. Briggs & Stratton (LIRC, 02/24/05).

The Complainant’s refusal to sign a severance or termination agreement containing a release of any claims against the employer did not constitute “opposition” to a discriminatory practice. Nor did the Complainant’s contacting an attorney demonstrate that he opposed a discriminatory practice since the employer had encouraged him to do so before signing the release. Accordingly, the Complainant failed to establish that the employer had retaliated against him by refusing to enter into an independent contractual relationship with him because he had opposed a discriminatory practice under the Act. Weier v. Heiden, Inc. (LIRC, 02/05/98).

A Complainant’s offer to return previously received pension benefits to the employer, even where the monies had not yet actually been returned, was sufficient to allow him to challenge the validity of a release of claims arising out of his employment including, but not limited to, any alleged violation of state or federal measures which prohibit employment discrimination. Grahl v. Mercury Marine (LIRC, 12/04/92).

The totality of the circumstances should be used in determining whether there has been a knowing and voluntary waiver of rights under the WFEA. Although giving an employee an opportunity to negotiate the terms of a release and encouraging the employee to consult with an attorney are factors to consider in determining whether a release was knowing or voluntary, such factors are not mandatory requirements, and a release could be found valid even in their absence. In this case, a release was determined to have been knowing and voluntary where the release was clear in its language, where a reasonable amount of time was allowed to consider whether or not to sign it, where the consideration given exceeded the amount of pension benefits the employee was otherwise entitled to receive, and where the employee had a high school education and had been a management employee who had many years of business experience and who had signed or had been a party to numerous contracts. Grahl v. Mercury Marine (LIRC, 12/04/92).