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Older Workers Benefits Protection Act

By Philip M. Berkowitz and Randy S. Gidseg

A valid release will likely be an employer's primary defense against employee workplace claims if the employer is sued on a matter covered by the release. A release, however, will not, by itself, prevent an employee from filing a lawsuit. An employer will incur attorneys' fees, even when successfully obtaining dismissal of employee suits using the release.

In order to discourage and, possibly, sanction an employee for bringing a suit, even where he or she has signed a release, employers have historically added to the release agreement a covenant not to sue. That covenant usually includes a promise that the employee will not sue, and that, if the employee does file suit, he or she must pay the employer's defense costs in addition to his or her own attorneys' fees and costs.

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