Can my employer stop me from disclosing discrimination at work?

Protecting Employee & Consumer Rights

Atty. C. Joe SAyAS, Jr

Q: I AM getting laid off from work. My employer offered me a severance agreement, but the document says I will have to agree to confidentiality clause about any harassment or discrimination at work. I have second thoughts about that because I actually complained to HR before the layoff notice that my boss is discriminating and harassing me at work. I am the only Filipino in my unit, and the manager goes out of his way to criticize and humiliate me. He even makes fun of my accent and my food. All my reviews from former supervisors were good. He gave me the severance agreement today and is saying I have to sign right away or they might withdraw the offer. Can they really do that?

A: No, your employer cannot rush you into signing the agreement, and they also cannot require you to agree to a confidentiality clause that prohibits your talking about any harassment or discrimination. Under California law, it is unlawful for an employer to include in a severance agreement “any provision that prohibits the disclosure of information about unlawful acts in the workplace.”

That same California law also requires an employer offering a severance agreement to notify the employee that they have the “right to consult an attorney regarding the agreement,” and give that that employee no less than 5 business days to consult with an attorney and consider the offered severance agreement. They cannot make you sign right away; you have to be given at least 5 business days to sign the offered severance agreement. I strongly suggest you use this time to consult with an attorney, including whether you may have a valid claim for discrimination, harassment or retaliation.

You already mentioned your belief that you were harassed and discriminated against because of your national origin and/or ethnicity. A consultation with an attorney can help you determine whether the termination of your employment may be related to that harassment and discrimination.

Moreover, when you complained to HR about discrimination and harassment, you were engaging in a protected activity under the antiretaliation laws. If the evidence shows that the employer discharged you because of your complaint of discrimination, that conduct may constitute unlawful termination. In that instance, you may be entitled to recover lost wages and damages for emotional distress. The employer may additionally be held to pay attorneys’ fees that you may have incurred in order to enforce your rights..

* * * The opinions, beliefs and viewpoints expressed by the author do not necessarily reflect the opinions, beliefs and viewpoints of the Asian Journal, its management, editorial board and staff.

* * * The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com. [For more than 25 years, C. Joe Sayas, Jr., Esq. successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, selected as Super Lawyer by the Los Angeles Magazine for 11 years, and is a past Presidential Awardee for Outstanding Filipino Overseas.]

(Advertising Supplement)