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Can You Void a Separation Agreement That Was Signed Under Duress

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  • 01-10-2017, 04:19 PM
    Alabama Jack
    Can You Void a Separation Agreement That Was Signed Under Duress
    My question involves business law in the state of: California

    I recently received a signed Confidential Severance Agreement and General Release agreement from a former employee. The line directly above the employees signature states “The Parties represent that they have carefully read and fully understand the provisions in this Agreement, that they are entering into this Agreement voluntarily and without compulsion”. While agreement was signed without comment the envelope contained a hand written note from the former employee that included the following “I would like to mention that I sign the papers under duress!” My question is does this separate note have any power to void the agreement?

    If so should I issue a new agreement with a letter stating the originally agreement was not accepted due to his note about it being signed under duress?

    Thank You.
  • 01-10-2017, 04:29 PM
    Taxing Matters
    Re: Signed Agreement with Separate Note That It Was Signed Under Duress
    The separate note is essentially meaningless. Moreover, the former employee almost certainly does not understand the meaning of the word “duress.” Duress means that some physical violence or other illegal act (or threat to do those things) was used to force a person to act against his/her will. Putting a gun to the ex-employee’s head and telling him to sign the agreement is duress. Telling the employee he needs to sign the agreement in order to get the offered severance pay is not duress.
  • 01-10-2017, 07:06 PM
    Alabama Jack
    Re: Signed Agreement with Separate Note That It Was Signed Under Duress
    Quote:

    Quoting Taxing Matters
    View Post
    The separate note is essentially meaningless. Moreover, the former employee almost certainly does not understand the meaning of the word “duress.” Duress means that some physical violence or other illegal act (or threat to do those things) was used to force a person to act against his/her will. Putting a gun to the ex-employee’s head and telling him to sign the agreement is duress. Telling the employee he needs to sign the agreement in order to get the offered severance pay is not duress.

    Thanks. I knew they were clueless on the meaning of duress, but just didn't want that to complicate things.

    I appreciate your help
  • 01-11-2017, 03:54 AM
    llworking
    Re: Signed Agreement with Separate Note That It Was Signed Under Duress
    Quote:

    Quoting Taxing Matters
    View Post
    The separate note is essentially meaningless. Moreover, the former employee almost certainly does not understand the meaning of the word “duress.” Duress means that some physical violence or other illegal act (or threat to do those things) was used to force a person to act against his/her will. Putting a gun to the ex-employee’s head and telling him to sign the agreement is duress. Telling the employee he needs to sign the agreement in order to get the offered severance pay is not duress.

    What about compulsion? The agreement specifically says that it is signed without compulsion. Could the employees use of the word duress be assumed to be talking about compulsion? I am just not entirely comfortable that the employee's statement can safely be ignored.
  • 01-11-2017, 05:39 AM
    eerelations
    Re: Signed Agreement with Separate Note That It Was Signed Under Duress
    Quote:

    Quoting llworking
    View Post
    What about compulsion? The agreement specifically says that it is signed without compulsion. Could the employees use of the word duress be assumed to be talking about compulsion? I am just not entirely comfortable that the employee's statement can safely be ignored.

    Maybe OP needs to find out exactly what the employee means by duress.
  • 01-11-2017, 08:37 AM
    hr for me
    Re: Signed Agreement with Separate Note That It Was Signed Under Duress
    Have to agree I would NOT ignore the note and would stop the processing of any severance payment in regards to signing the agreement until the issue is decided. At least I would go back to the legal counsel that put the agreement together and ask them how to proceed.
  • 01-11-2017, 08:39 AM
    Taxing Matters
    Re: Signed Agreement with Separate Note That It Was Signed Under Duress
    Quote:

    Quoting llworking
    View Post
    What about compulsion? The agreement specifically says that it is signed without compulsion. Could the employees use of the word duress be assumed to be talking about compulsion? I am just not entirely comfortable that the employee's statement can safely be ignored.

    If the employee meant compulsion in that separate statement then the employee should have said so. One generally assumes that people use the words they choose to use. Here, had duress really been used then certainly the employee was compelled to sign it, the statement to the contrary in the contract notwithstanding. The thing is that the statement in the contract that it was signed free of compulsion is not worth a lot to begin with. The former employee could always raise the issue of duress or compulsion (if that term is relevant for executing this kind of contract under state law) in a challenge to the enforcement of the contract. In such a defense, however, the employee would have to produce evidence of the duress or compulsion used to obtain his signature on the contract. The separate statement he sent the employer claiming he signed it under duress is hearsay and not admissible when offered by the employee to help prove he/she signed under duress/compulsion. It is because it is not admissible for that purpose that it is essentially worthless.

    The employer is free to send a new contract out and tell the employee to sign it again without any qualifications like the statement about duress or the employer will not pay the severance. There is a risk, though, that the employee having signed the contract makes it enforceable and the failure to pay the severance would put the employer in breach.
  • 01-11-2017, 09:18 AM
    adjusterjack
    Re: Signed Agreement with Separate Note That It Was Signed Under Duress
    Quote:

    Quoting Taxing Matters
    View Post

    The employer is free to send a new contract out and tell the employee to sign it again without any qualifications like the statement about duress or the employer will not pay the severance. There is a risk, though, that the employee having signed the contract makes it enforceable and the failure to pay the severance would put the employer in breach.

    Isn't signing the contract with a modification the equivalent of not accepting the contract but only making a counter-offer which would then need to be accepted by the employer in order to be enforceable?
  • 01-11-2017, 09:34 AM
    Taxing Matters
    Re: Signed Agreement with Separate Note That It Was Signed Under Duress
    Quote:

    Quoting adjusterjack
    View Post
    Isn't signing the contract with a modification the equivalent of not accepting the contract but only making a counter-offer which would then need to be accepted by the employer in order to be enforceable?

    Yes. But the former employee did not modify the contract. He sent a separate statement that was prepared after the contract was signed. That later prepared separate statement is not modification of the contract and thus would not be construed as a counter-offer. The employee would have done better to strike the language about compulsion in the contract itself. That would have clearly been a modification of the contract and thus a counter offer. The employer certainly would not have wanted to accept that.
  • 01-11-2017, 01:38 PM
    Alabama Jack
    Re: Signed Agreement with Separate Note That It Was Signed Under Duress
    Here is an update on the situation.

    I was reviewing the signed agreement and the separate note last night and I realized that they are signed by two different people. I pulled the employee's file to look for a signature to compare and it looks like the agreement was signed by our former employee, but the separate note was written and signed by someone else. I am guessing it was his spouse, but it doesn't matter either way as long as it wasn't written or signed by him, correct?
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