Separation Agreement and General Release (New York)

SEPARATION AGREEMENT AND GENERAL RELEASE

State of New York

PRIVILEGED AND CONFIDENTIAL

IMPORTANT: New York has a dual-layer anti-discrimination framework. The New York State Human Rights Law (NYSHRL, Exec. Law § 290 et seq.) applies statewide and has been significantly expanded in recent years. For employees working in New York City, the New York City Human Rights Law (NYCHRL, NYC Admin. Code § 8-101 et seq.) provides even broader protections and is to be construed liberally to accomplish its remedial purposes. Both laws must be addressed in separation agreements for NYC-based employees.

This Separation Agreement and General Release ("Agreement") is entered into by and between:

EMPLOYER: [________________________________] ("Company"), a [________________________________] organized under the laws of [________________________________], with its principal place of business at [________________________________]

EMPLOYEE: [________________________________] ("Employee"), an individual residing at [________________________________], New York [____]

☐ Employee works/worked in New York City -- NYCHRL provisions apply in addition to NYSHRL
☐ Employee works/worked outside New York City -- NYSHRL provisions apply; local human rights laws may also apply

(Company and Employee are each a "Party" and collectively the "Parties.")

Date of Agreement: [__/__/____]

RECITALS

WHEREAS, Employee has been employed by Company in the position of [________________________________] since [__/__/____], working primarily in the State of New York;

WHEREAS, the Parties have mutually agreed that Employee's employment shall end effective [__/__/____] (the "Separation Date");

WHEREAS, the Parties desire to resolve all matters relating to Employee's employment and its termination;

WHEREAS, Company desires to provide separation benefits in exchange for Employee's agreement to the terms of this Agreement;

NOW, THEREFORE, in consideration of the mutual promises set forth herein, the Parties agree as follows:

ARTICLE 1: SEPARATION OF EMPLOYMENT

1.1 Separation Date. Employment terminates effective as of the Separation Date.

1.2 Last Day of Work. [__/__/____].

1.3 Final Wages -- New York Requirements.

(a) NY Final Pay Timing (NY Lab. Law § 191). Company shall pay Employee all wages earned and unpaid by the next regular payday following the Separation Date. This applies regardless of the reason for separation (termination, resignation, or layoff).

(b) Wage Theft Prevention Act (WTPA -- Lab. Law § 195). Company must have provided Employee with a notice of pay rate and payday at hire and with each change. Company must provide wage statements with each payment.

(c) Final wages include all earned but unpaid wages, overtime, and compensation. Final wages shall be paid regardless of whether Employee executes this Agreement.

(d) Vacation/PTO Payout. New York does not mandate PTO payout by statute, but if Company policy or practice provides for payout, the amount constitutes "wages" under NY Labor Law and failure to pay may subject the employer to penalties. If policy provides: $[________________________________].

(e) Liquidated Damages and Penalties (NY Lab. Law Art. 6, § 198). An employer that fails to pay wages may be liable for liquidated damages equal to 100% of the amount of underpayment (i.e., double damages), plus reasonable attorney's fees and costs.

(f) NY WARN Act (Lab. Law Art. 25-A). If this separation is part of a mass layoff, plant closing, or relocation involving 25+ full-time employees, the NY WARN Act requires 90 days' advance notice. The NY WARN threshold is lower than the federal WARN Act (25 vs. 50 employees). Failure to provide notice may result in back pay and benefits for the notice period, plus a civil penalty of up to $500 per day of violation.

☐ This separation is subject to NY WARN: [________________________________]
☐ This separation is not subject to NY WARN.

1.4 Expense Reimbursement. Within [____] days of the Separation Date.

ARTICLE 2: SEVERANCE CONSIDERATION

2.1 Severance Payment.

☐ Lump Sum: $[________________________________], less withholdings, within [____] days following the Effective Date.

☐ Installments: $[________________________________], in [____] installments beginning on the first payroll date following the Effective Date.

Note: Severance payments made within 30 days of separation may affect unemployment benefits eligibility.

2.2 Benefits Continuation. ☐ COBRA subsidy for [____] months. ☐ NY state continuation coverage (for small employers, up to 36 months per Insurance Law § 3221). ☐ Lump sum: $[________________________________].

2.3 Outplacement. [________________________________]

2.4 Other Benefits. [________________________________]

2.5 Tax Treatment. Subject to applicable withholdings.

ARTICLE 3: EQUITY, BONUS, AND OTHER COMPENSATION

3.1 Equity Awards. [________________________________]

3.2 Bonus. [________________________________]

3.3 Section 409A. All payments comply with or are exempt from Section 409A.

ARTICLE 4: GENERAL RELEASE OF CLAIMS

4.1 Employee Release. Employee hereby voluntarily, knowingly, and irrevocably releases and forever discharges the Released Parties from all claims, including but not limited to:

(a) Federal Statutes:

• Title VII, ADEA (subject to Article 6), ADA, Pregnant Workers Fairness Act (PWFA) (42 U.S.C. § 2000gg et seq.), FMLA, Equal Pay Act, GINA, USERRA, ERISA (excluding vested benefits), federal WARN Act, Section 1981, Sarbanes-Oxley

(b) New York State Human Rights Law (NYSHRL -- Exec. Law § 290 et seq.):

• The NYSHRL prohibits discrimination in employment based on age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex (including sexual harassment, pregnancy, and gender), disability, marital status, familial status, domestic violence victim status, predisposing genetic characteristics, prior arrest or conviction record, and reproductive health decisions
• Applies to all employers regardless of size (since 2019 amendments)
• Statute of limitations: Three (3) years for filing with the Division of Human Rights (extended from one year effective February 15, 2024)
• Punitive damages: Available against private employers (since 2019)
• Individual liability: Supervisors and individuals who participate in discriminatory conduct may be held personally liable

(c) New York City Human Rights Law (NYCHRL -- NYC Admin. Code § 8-101 et seq.) (if applicable):

• The NYCHRL is construed more broadly than the NYSHRL and federal law, and protects against discrimination based on all NYSHRL categories plus: lawful recreational and political activities, consumer credit history, caregiver status, salary history inquiries, height, weight, and additional protected categories
• Applies to employers with 4 or more employees (for employment discrimination; harassment claims apply to all employers)
• The NYCHRL expressly provides that it shall be construed liberally to accomplish its uniquely broad remedial purposes regardless of how federal or state civil rights laws have been interpreted (Local Law 85 of 2005)
• Uncapped compensatory damages and punitive damages available
• Three-year statute of limitations for filing with NYC Commission on Human Rights or one year for administrative complaints
• 2024 Amendment: Effective May 11, 2024, NYCHRL prohibits provisions in employment agreements that shorten the statutory filing periods

(d) Other NY State Statutes:

• NY Labor Law (all articles, including wage payment, overtime, and wage theft)
• NY Paid Family Leave Benefits Law (WCL Art. 9)
• NY WARN Act (Lab. Law Art. 25-A)
• NY Whistleblower Protection (Lab. Law § 740)
• NY Pay Transparency Law (Lab. Law § 194-b)
• NY Salary History Ban (Lab. Law § 194-a)
• NY Reproductive Health Decision Making (Lab. Law § 203-e)

(e) Common Law Claims: Breach of contract, wrongful discharge, tortious interference, defamation, intentional or negligent infliction of emotional distress, invasion of privacy, prima facie tort, fraud, and all other NY common law claims.

4.2 CPLR § 7515 -- Mandatory Arbitration Prohibition.

IMPORTANT: NY CPLR § 7515 prohibits mandatory arbitration clauses for claims of discrimination under the NYSHRL (and potentially the NYCHRL). Any provision requiring mandatory arbitration of such claims is null and void (except where inconsistent with controlling federal law, such as the FAA). This Agreement does not require mandatory arbitration of any discrimination claim in violation of CPLR § 7515.

4.3 NY Gen. Oblig. Law § 5-336 -- Sexual Harassment NDA Restrictions.

If the claims being released include allegations of sexual harassment:

(a) Any confidentiality provision regarding the underlying facts of a sexual harassment claim is enforceable only if confidentiality is the preference of the complainant/plaintiff (Employee).

(b) Employee must be given twenty-one (21) days to consider any confidentiality provision and seven (7) days to revoke any agreement to such provision.

(c) If Employee does not agree to confidentiality, the underlying facts and settlement amount need not be kept confidential.

☐ This Agreement involves sexual harassment allegations -- § 5-336 procedures followed.
☐ This Agreement does not involve sexual harassment allegations.

4.4 Standard Carve-Outs. Enforcement of this Agreement; post-signing claims; unemployment; workers' comp; vested ERISA benefits; indemnification; agency filings (EEOC, NLRB, SEC, OSHA, NY Division of Human Rights, NYC Commission on Human Rights, NY Department of Labor); NLRA Section 7; non-waivable rights; Speak Out Act.

4.5 Unknown Claims. Release covers known and unknown claims. NY does not have a statutory equivalent to California Civil Code § 1542; general release language is effective.

4.6 Company Release. Standard release with exceptions.

ARTICLE 5: DEFEND TRADE SECRETS ACT -- WHISTLEBLOWER IMMUNITY NOTICE

Pursuant to 18 U.S.C. § 1833(b):

"An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and solely for the purpose of reporting or investigating a suspected violation of law; or (ii) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal and does not disclose the trade secret, except pursuant to court order."

ARTICLE 6: OWBPA / ADEA COMPLIANCE (EMPLOYEES AGE 40 AND OLDER)

This Article applies if Employee is age 40 or older at the time of signing.

6.1 Knowing and Voluntary Waiver. Employee acknowledges this Agreement constitutes a knowing and voluntary waiver of ADEA claims per the OWBPA, 29 U.S.C. § 626(f).

6.2 Consideration Period.

☐ Individual Separation (21 days): Employee has at least twenty-one (21) calendar days to consider this Agreement.

☐ Group/Program Exit (45 days): Employee has at least forty-five (45) calendar days to consider this Agreement. Decisional unit disclosure attached as Exhibit A.

6.3 Revocation Period. Employee may revoke within seven (7) calendar days after signing by delivering written notice to [________________________________] at [________________________________]. The Agreement becomes effective on the eighth (8th) day after signing without revocation (the "Effective Date").

6.4 Advice of Counsel. Employee is advised in writing to consult with an attorney before signing this Agreement. Employee acknowledges having had the opportunity to consult with an attorney of Employee's choice.

6.5 No Waiver of Future Claims. This Agreement does not waive claims arising after the date Employee signs it.

6.6 Additional Consideration. The consideration in Article 2 exceeds anything Employee is already entitled to receive.

ARTICLE 7: CONFIDENTIALITY, NON-DISPARAGEMENT, AND PROTECTED DISCLOSURES

7.1 Confidentiality of Agreement Terms. Employee agrees to keep the terms and conditions of this Agreement confidential and shall not disclose them to any person other than Employee's spouse or domestic partner, attorney, tax advisor, or financial advisor, each of whom shall be advised of this confidentiality obligation, except as required by law or legal process. This obligation is subject to:

• Gen. Oblig. Law § 5-336 restrictions if sexual harassment is involved (see Section 4.3) -- confidentiality is the complainant's preference, not the employer's;
• NY Lab. Law § 740 whistleblower protection carve-outs;
• NYCHRL prohibition on provisions shortening the statute of limitations or waiving rights.

7.2 Non-Disparagement (McLaren Macomb-Compliant).

(a) Employee agrees not to make public statements that are materially disparaging of Company, its products, services, officers, directors, or employees.

(b) Company agrees to instruct its senior officers and directors not to make public statements that are materially disparaging of Employee.

(c) NLRA Section 7 Carve-Out (McLaren Macomb, 372 NLRB No. 58 (2023)). Nothing in this Section restricts Employee's rights under Section 7 of the NLRA, including the right to engage in protected concerted activity, to communicate with co-workers, union representatives, or third parties about terms and conditions of employment, or to engage in other NLRA-protected activity.

7.3 Protected Disclosures. Nothing in this Agreement prohibits or restricts Employee from:

(a) Filing a charge, complaint, or report with the EEOC, NLRB, SEC, OSHA, New York Division of Human Rights, NYC Commission on Human Rights, New York Department of Labor, or any other federal, state, or local agency;

(b) Communicating with or providing information to any governmental agency or legislative body;

(c) Testifying truthfully in any legal proceeding;

(d) Engaging in NLRA Section 7 protected concerted activity;

(e) Making disclosures protected by the Speak Out Act (Pub. L. 117-224);

(f) Making disclosures protected by NY Lab. Law § 740 (whistleblower protection).

7.4 Confidential Business Information. Per existing agreements and applicable trade secret law.

ARTICLE 8: RESTRICTIVE COVENANTS

8.1 Existing NDA, invention assignment, and confidentiality agreements survive.

8.2 Non-Competition (NY Law).

New York evaluates non-competes under common law, applying the BDO Seidman standard: a non-compete is reasonable only if it (1) is no greater than required for the protection of the legitimate interest of the employer, (2) does not impose an undue hardship on the employee, and (3) is not injurious to the public. NY courts may partially enforce overbroad provisions. Note: Legislation to ban or significantly restrict non-competes in New York has been introduced repeatedly; verify current law at the time of execution.

☐ No Non-Compete.
☐ Existing Non-Compete. Duration: [____] months. Geographic scope: [________________________________]. Activity: [________________________________].

8.3 Non-Solicitation. [________________________________]

8.4 No-Rehire. ☐ Applicable. ☐ Not applicable.

ARTICLE 9: RETURN OF COMPANY PROPERTY

9.1 Within [____] days of the Separation Date, Employee shall return all Company property, including but not limited to:

☐ Laptop computers, tablets, mobile phones, and other electronic devices
☐ Access cards, keys, security badges, and parking passes
☐ Credit cards and corporate purchasing cards
☐ All documents, files, records, and data (hard copy and electronic)
☐ Proprietary and confidential information in any form
☐ All copies of the foregoing

9.2 Employee represents and warrants that Employee has not retained and will not retain any copies of Company documents, data, or confidential information on any personal device, cloud account, external storage device, or email account.

9.3 Employee shall cooperate with Company to ensure the orderly transition of responsibilities and shall be available for reasonable questions for a period of [____] days following the Separation Date.

ARTICLE 10: DISPUTE RESOLUTION

10.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. ☐ If Employee works in New York City, the NYCHRL also applies.

10.2 Forum Selection. Any dispute arising under this Agreement shall be brought exclusively in the state or federal courts located in [________________________________], New York.

10.3 Arbitration.

☐ Not applicable. (Recommended for NY, given CPLR § 7515 restrictions on mandatory arbitration of discrimination claims.)

☐ Disputes resolved by binding arbitration administered by [________________________________], excluding (per CPLR § 7515 and the Ending Forced Arbitration Act):

• Discrimination and harassment claims under the NYSHRL and NYCHRL;
• Sexual assault and sexual harassment claims under 9 U.S.C. § 401 et seq.;
• NLRB charges; workers' compensation; unemployment insurance.

10.4 Jury Waiver. ☐ TO THE EXTENT PERMITTED BY NEW YORK LAW, EACH PARTY HEREBY WAIVES THE RIGHT TO A TRIAL BY JURY. (Note: Enforceability in NY varies by context.) ☐ Not applicable.

ARTICLE 11: GENERAL PROVISIONS

11.1 Entire Agreement. This Agreement constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes all prior agreements, negotiations, representations, and proposals.

11.2 Amendments. This Agreement may not be modified except by a written instrument signed by both Parties.

11.3 Severability. If any provision is held invalid, the remaining provisions continue in full force and effect.

11.4 Waiver. Failure to enforce any provision does not constitute a waiver of future enforcement rights.

11.5 Counterparts. This Agreement may be executed in counterparts. Electronic signatures are valid and binding.

11.6 Successors and Assigns. This Agreement binds and benefits the Parties and their heirs, successors, and assigns.

11.7 No Admission. Nothing herein is an admission of liability by either Party.

11.8 Section 409A. All payments are intended to comply with or be exempt from Section 409A of the Internal Revenue Code.

ARTICLE 12: NEW YORK-SPECIFIC COMPLIANCE CHECKLIST

☐ Final wages paid by next regular payday (Lab. Law § 191)
☐ Earned wages NOT conditioned on execution of this Agreement
☐ PTO payout per employer policy; failure to pay = double damages + attorney fees (Lab. Law § 198)
☐ NYSHRL claims enumerated (Exec. Law § 290 et seq.) -- applies to all employers, 3-year SOL, punitive damages available
☐ NYCHRL claims enumerated (if NYC employee) (Admin. Code § 8-101 et seq.) -- broader than NYSHRL, liberal construction mandate
☐ CPLR § 7515 compliance -- no mandatory arbitration of discrimination claims
☐ Gen. Oblig. Law § 5-336 compliance -- if sexual harassment involved, confidentiality is complainant's choice, 21-day consideration + 7-day revocation for NDA
☐ NYCHRL statute-of-limitations protection -- no provision shortens filing periods (2024 amendment)
☐ NY WARN Act compliance (Lab. Law Art. 25-A) -- 90 days notice, 25+ employees threshold (if applicable)
☐ NY Pay Transparency Law compliance (Lab. Law § 194-b)
☐ NY Lab. Law § 740 whistleblower protections preserved
☐ NY Division of Human Rights and NYC Commission on Human Rights filing rights preserved
☐ Non-compete (if any) meets BDO Seidman reasonableness test; verify legislative status of non-compete ban proposals
☐ OWBPA 21-day or 45-day consideration period provided
☐ 7-day ADEA revocation period provided
☐ Employee advised to consult an attorney
☐ DTSA notice included
☐ McLaren Macomb NLRA Section 7 carve-out included
☐ Speak Out Act protections preserved
☐ Severance timing and unemployment benefits interaction noted

ARTICLE 13: SIGNATURES

PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS A GENERAL RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS, INCLUDING CLAIMS UNDER THE NEW YORK STATE HUMAN RIGHTS LAW AND, IF APPLICABLE, THE NEW YORK CITY HUMAN RIGHTS LAW.

EMPLOYER: Signature: _____________________________ Date: [__/__/____]

Name: [________________________________] Title: [________________________________]

EMPLOYEE: Signature: _____________________________ Date: [__/__/____]

Name: [________________________________]

EXHIBITS:

☐ Exhibit A -- OWBPA Decisional Unit Disclosure (if applicable)
☐ Exhibit B -- Severance Payment Schedule
☐ Exhibit C -- NY WARN Compliance Documentation (if applicable)
☐ Exhibit D -- Gen. Oblig. Law § 5-336 Sexual Harassment NDA Election (if applicable)
☐ Exhibit E -- Non-Compete (if applicable)
☐ Exhibit F -- Reference Letter

Sources and References

• NYSHRL: Exec. Law § 290 et seq.
• NYCHRL: NYC Admin. Code § 8-101 et seq.
• NY Final Pay: Lab. Law § 191
• CPLR § 7515 (Mandatory Arbitration Prohibition): CPLR § 7515
• NDA Restrictions (Sexual Harassment): Gen. Oblig. Law § 5-336
• NY WARN Act: Lab. Law Art. 25-A
• NY Whistleblower: Lab. Law § 740
• NY Division of Human Rights: DHR Legal Updates
• NYCHRL 2024 Amendments: NYCHRL SOL Protection
• OWBPA: 29 U.S.C. § 626(f)
• McLaren Macomb: 372 NLRB No. 58 (2023)
• DTSA: 18 U.S.C. § 1833(b)

This template is provided for informational purposes only. New York has a dual-layer anti-discrimination framework (NYSHRL + NYCHRL) with some of the broadest protections in the nation. NYC employees have additional protections. Consult a qualified NY attorney before use.

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