In this Legal Update from Jackson Lewis http://www.jacksonlewis.com/legalupdates/article.cfm?aid=1263, we learn that:

“A California appellate court has ruled that a broad employment severance agreement, including a release of claims under “any other federal or state law,” was unenforceable under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) to the extent the release sought to cover claims for wrongful termination based on the plaintiff’s military service. Perez v. Unline, Inc., No. G036939 (Cal. Ct. App. Dec. 6, 2007).”

Here in California, the basic principle is that certain employee rights cannot be waived, even if the employee gets consideration and signs a separation agreement containing a specific waiver of those rights. A classic example is entitlement to payment of all wages earned. At first blush, it seems to me that USERRA rights are being added to that category.

Rather than try to get departing employees to waive those involate rights, employers must make sure they have fulfilled their obligations and can prove they have done so. A separation agreement can then have the employee recite that she has received all of her wages, rather than state that she is waiving her claims to get paid her wages.

As with so many aspects of employment law, this is a tricky area. Consult with expert counsel and get help crafting a separation agreement that doesn’t try to accomplish the impossible!