SEPARATION AGREEMENT AND GENERAL RELEASE

State of West Virginia

PRIVILEGED AND CONFIDENTIAL

IMPORTANT -- WEST VIRGINIA WVHRA WAIVER REQUIREMENTS: West Virginia has specific regulatory requirements for a valid waiver of rights under the West Virginia Human Rights Act (WVHRA). Under W.Va. CSR § 77-6, a waiver must be: (1) in plain English; (2) specifically reference the WVHRA; (3) not waive future claims; (4) supported by consideration in addition to amounts already owed; (5) include written advice to consult an attorney and provide the WV State Bar toll-free number (1-866-989-8227); and (6) provide at least 21 days to consider and 7 days to revoke. Failure to meet these requirements may render the waiver invalid.

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 [________________________________], West Virginia [____]

(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 West Virginia;

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

WHEREAS, Company desires to provide separation benefits beyond what Employee is otherwise entitled to receive;

WHEREAS, Employee has been advised to consult with an attorney and has been provided the West Virginia State Bar toll-free number;

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

ARTICLE 1: SEPARATION OF EMPLOYMENT

1.1 Separation Date. Employment terminates effective the Separation Date.

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

1.3 Final Wages -- West Virginia Requirements.

(a) Final Pay Timing (W.Va. Code § 21-5-4).

• Discharge/Involuntary Termination: Company shall pay all wages due within seventy-two (72) hours of the date of discharge, or by the next regular payday, whichever comes first.
• Voluntary Quit/Resignation: Company shall pay all wages due by the next regular payday.
• If Employee makes written demand: All wages must be paid within seventy-two (72) hours of the demand.

(b) Wages Defined (W.Va. Code § 21-5-1). "Wages" means compensation for labor or services, whether fixed or ascertained, including salary, overtime, holiday pay, and any other agreed-upon compensation. "Fringe benefits" means vacation, sick leave, personal leave, and similar benefits if provided by employer policy or agreement.

(c) PTO/Vacation Payout. West Virginia requires payout of earned but unused vacation, sick leave, and similar fringe benefits upon separation if such benefits are provided by Company policy or agreement. Under W.Va. Code § 21-5-1(c), "fringe benefits" that constitute part of the compensation agreement must be paid. Amount: $[________________________________].

(d) Penalties (W.Va. Code § 21-5-4(e)). If Company fails to pay wages when due, Employee may recover the full amount of wages due plus liquidated damages equal to three times the unpaid wages (i.e., treble damages), plus reasonable attorneys' fees and costs. The employer may also be subject to a civil penalty of up to $500 per violation.

(e) Wage Deductions (W.Va. Code § 21-5-3). No deductions except those required by law, authorized in writing by the employee, or otherwise permitted by law. Any deduction for unreturned property must be separately authorized.

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

ARTICLE 2: SEVERANCE CONSIDERATION

2.1 Severance Payment.

☐ Lump Sum: $[________________________________], less applicable withholdings.

☐ Installments: $[________________________________] per [____], for [____] months.

2.2 Benefits Continuation.

☐ COBRA Subsidy: [____] months.
☐ WV Continuation Coverage: Under W.Va. Code § 33-16-3, continuation coverage is available for up to 18 months.
☐ Lump Sum: $[________________________________].

2.3 Outplacement. [________________________________]

2.4 Other Benefits. [________________________________]

2.5 Tax Treatment. Subject to applicable withholdings.

2.6 Adequacy of Consideration. The consideration provided in this Article exceeds anything of value to which Employee is already entitled, satisfying the requirement under W.Va. CSR § 77-6-3.2.d that consideration for a WVHRA waiver be in addition to amounts already owed.

ARTICLE 3: EQUITY, BONUS, AND OTHER COMPENSATION

3.1 Equity Awards. [________________________________]

3.2 Bonus/Commissions. [________________________________]

3.3 Section 409A. Compliance intended.

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), WARN Act, Section 1981, Sarbanes-Oxley, Dodd-Frank

(b) West Virginia Human Rights Act (WVHRA) (W.Va. Code § 5-11-1 et seq.):

THIS AGREEMENT SPECIFICALLY REFERENCES AND INCLUDES A WAIVER OF RIGHTS AND CLAIMS UNDER THE WEST VIRGINIA HUMAN RIGHTS ACT (W.Va. Code § 5-11-1 et seq.), AS REQUIRED BY W.Va. CSR § 77-6.

• The WVHRA prohibits employment discrimination based on race, color, religion, sex (including pregnancy), ancestry, age (40+), blindness, disability, national origin, and familial status
• Enforced by the West Virginia Human Rights Commission (WVHRC)
• Applies to employers with twelve (12) or more employees
• Administrative complaints must be filed with the WVHRC within 365 days (one year) of the alleged discriminatory act
• Civil actions may be filed in circuit court within two (2) years
• Remedies: Back pay, front pay, compensatory damages, punitive damages, reinstatement, injunctive relief, and reasonable attorneys' fees and costs
• No statutory cap on compensatory or punitive damages under the WVHRA
• W.Va. Code § 5-11-9 -- Retaliation protections
• The WVHRA provides broader coverage than Title VII in several respects, including uncapped damages and a lower employer-size threshold

(c) WVHRA Waiver Requirements (W.Va. CSR § 77-6-3): This waiver satisfies all regulatory requirements:

☐ (i) Plain English: This Agreement is written in plain English, in a manner calculated to be understood by the average person with a similar educational and work background as Employee

☐ (ii) Specific WVHRA Reference: This Agreement specifically references rights and claims under the West Virginia Human Rights Act (W.Va. Code § 5-11-1 et seq.)

☐ (iii) No Future Claims Waived: This Agreement does not waive rights or claims that may arise after the date Employee signs it

☐ (iv) Additional Consideration: The consideration provided exceeds anything of value to which Employee is already entitled

☐ (v) Attorney Advice: Employee is advised in writing to consult with an attorney before signing this Agreement. The toll-free number for the West Virginia State Bar Lawyer Referral Service is: 1-866-989-8227

☐ (vi) 21-Day Consideration Period: Employee has been given at least twenty-one (21) days to consider this Agreement

☐ (vii) 7-Day Revocation Period: Employee may revoke this Agreement for a period of at least seven (7) days following execution

(d) Attorney-Assisted Settlement Exception (W.Va. CSR § 77-6-3.3). If Employee has filed a complaint under the WVHRA and executes this release with the direct assistance of an attorney who has made an appearance on Employee's behalf, the waiver may be considered knowing and voluntary without strict compliance with the consideration period, revocation period, and attorney-advice requirements of CSR § 77-6-3.2.e through 3.2.g.

☐ This release is executed with the direct assistance of Employee's attorney (attorney-assisted settlement exception applies)
☐ This release is NOT executed under the attorney-assisted settlement exception (full CSR 77-6 requirements apply)

(e) Other West Virginia Statutes:
- West Virginia Wage Payment and Collection Act (W.Va. Code § 21-5-1 et seq.)
- West Virginia Workers' Compensation (W.Va. Code § 23-1-1 et seq.) (excluding existing claims)
- West Virginia Parental Leave Act (W.Va. Code § 21-5D-1 et seq.)
- West Virginia Whistleblower Law (W.Va. Code § 6C-1-1 et seq.)
- West Virginia Equal Pay for Equal Work Act (W.Va. Code § 21-5B-1 et seq.)

(f) Common Law Claims: Breach of contract, wrongful discharge in violation of public policy (Harless v. First National Bank, 162 W.Va. 116 (1978)), tortious interference, defamation, fraud, intentional or negligent infliction of emotional distress, invasion of privacy, and all other West Virginia common law claims.

4.2 Standard Carve-Outs. This Release does NOT waive or release:

(a) Rights to enforce this Agreement;
(b) Post-signing claims;
(c) Vested ERISA benefits;
(d) Unemployment insurance benefits;
(e) Workers' compensation benefits;
(f) Indemnification rights;
(g) Right to file or cooperate with the EEOC, NLRB, SEC, OSHA, WVHRC, WV Division of Labor, or any governmental agency;
(h) NLRA Section 7 rights;
(i) Speak Out Act protections;
(j) Non-waivable rights.

4.3 Unknown Claims. Release covers known and unknown claims to the fullest extent permitted by West Virginia law.

4.4 Company Release. Standard mutual 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)

6.1 Knowing and Voluntary Waiver. Per OWBPA, 29 U.S.C. § 626(f). (Note: The WVHRA's CSR 77-6 waiver requirements substantially parallel the OWBPA requirements.)

6.2 Consideration Period.

☐ Individual (21 days): Also satisfies CSR 77-6 requirement.

☐ Group Exit (45 days). Decisional unit disclosure: Exhibit A. (Note: The CSR 77-6 21-day minimum still applies; 45 days under OWBPA satisfies both.)

6.3 Revocation Period. Seven (7) calendar days. Written revocation to [________________________________]. Effective Date: eighth day. (Satisfies both OWBPA and CSR 77-6 revocation requirements.)

6.4 Advice of Counsel. Employee is advised in writing to consult with an attorney. The toll-free number for the West Virginia State Bar Lawyer Referral Service is: 1-866-989-8227.

6.5 No Waiver of Future Claims.

6.6 Additional Consideration.

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

7.1 Confidentiality. Standard terms with carve-outs.

7.2 Non-Disparagement (McLaren Macomb-Compliant). Mutual; NLRA Section 7 carve-out per McLaren Macomb, 372 NLRB No. 58 (2023).

7.3 Protected Disclosures. Employee may:

(a) File with EEOC, NLRB, SEC, OSHA, WVHRC, WV Division of Labor, or any agency;
(b) Cooperate with investigations;
(c) Testify truthfully;
(d) Engage in NLRA Section 7 activity;
(e) Make Speak Out Act and DTSA-protected disclosures;
(f) Exercise West Virginia Whistleblower Law protections (W.Va. Code § 6C-1-1 et seq.).

7.4 Confidential Business Information. Per existing agreements and West Virginia Uniform Trade Secrets Act (W.Va. Code § 47-22-1 et seq.).

ARTICLE 8: RESTRICTIVE COVENANTS

8.1 West Virginia Non-Compete Law (Common Law).

West Virginia has no specific non-compete statute and evaluates enforceability under common law reasonableness principles:

• Reasonableness Test: A non-compete is enforceable if it is reasonable in (1) scope of restricted activities, (2) geographic area, (3) duration, and protects a legitimate business interest
• Protectable Interests: Trade secrets, confidential information, customer relationships, and specialized training
• Consideration: Employment itself provides consideration at inception; mid-employment restrictions may require new consideration
• Blue-Pencil/Reformation: West Virginia courts have the ability to modify overbroad restrictions, though this power should not be relied upon
• Duration: 1-2 years is generally considered reasonable
• Physician Non-Competes: West Virginia follows general reasonableness principles for physician non-competes

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

8.2 Non-Solicitation. [________________________________]

8.3 Existing NDAs/Invention Assignment. Survive per their terms.

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

ARTICLE 9: RETURN OF COMPANY PROPERTY

9.1 Within [____] days, return all property. 9.2 No copies retained. 9.3 Any wage deduction for unreturned property requires separate written authorization per W.Va. Code § 21-5-3; otherwise pursue reimbursement separately. 9.4 Transition cooperation.

ARTICLE 10: DISPUTE RESOLUTION

10.1 Governing Law. Laws of West Virginia.

10.2 Forum. State or federal courts in [________________________________] County, West Virginia.

10.3 Arbitration. ☐ Not applicable. ☐ Applicable (with standard exclusions).

10.4 Jury Waiver. ☐ Mutual waiver. ☐ Not applicable.

ARTICLE 11: GENERAL PROVISIONS

11.1 Entire Agreement. 11.2 Amendments. 11.3 Severability. 11.4 Waiver. 11.5 Counterparts. 11.6 Successors and Assigns. 11.7 No Admission. 11.8 Section 409A.

ARTICLE 12: WEST VIRGINIA-SPECIFIC COMPLIANCE CHECKLIST

☐ Final wages paid within 72 hours of discharge or by next regular payday (W.Va. Code § 21-5-4)
☐ Final wages NOT conditioned on execution of this Agreement
☐ PTO/vacation/fringe benefits payout per policy/agreement (W.Va. Code § 21-5-1(c))
☐ Treble damages exposure noted (W.Va. Code § 21-5-4(e))
☐ WVHRA claims specifically referenced by name (W.Va. Code § 5-11-1 et seq.) -- REQUIRED by CSR 77-6
☐ WVHRA waiver regulatory requirements met (CSR 77-6):
☐ Written in plain English
☐ Specifically references WVHRA
☐ Does not waive future claims
☐ Consideration exceeds amounts already owed
☐ Written advice to consult an attorney
☐ WV State Bar toll-free number included (1-866-989-8227)
☐ At least 21 days to consider
☐ At least 7 days to revoke
☐ Attorney-assisted settlement exception applied (if applicable)
☐ No statutory cap on WVHRA damages (uncapped compensatory and punitive)
☐ Non-compete (if any) meets common law reasonableness
☐ Wage deductions for unreturned property require separate written authorization
☐ OWBPA consideration period provided (21 or 45 days) -- overlaps with CSR 77-6
☐ Employee advised to consult an attorney with Bar referral number
☐ DTSA whistleblower immunity notice included (18 U.S.C. § 1833(b))
☐ McLaren Macomb NLRA Section 7 carve-out included
☐ Speak Out Act protections preserved
☐ WVHRC filing rights preserved

ARTICLE 13: SIGNATURES

PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS A GENERAL RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS, INCLUDING CLAIMS UNDER THE WEST VIRGINIA HUMAN RIGHTS ACT (W.Va. Code § 5-11-1 et seq.). YOU ARE ADVISED TO CONSULT WITH AN ATTORNEY BEFORE SIGNING. THE WEST VIRGINIA STATE BAR LAWYER REFERRAL SERVICE CAN BE REACHED AT 1-866-989-8227.

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 -- Non-Compete Terms (if applicable)
☐ Exhibit D -- Reference Letter

Sources and References

• West Virginia Human Rights Act: W.Va. Code § 5-11-1 et seq.
• WVHRA Waiver Rules: W.Va. CSR § 77-6
• WV Final Pay: W.Va. Code § 21-5-4
• WV Human Rights Commission: WVHRC
• WV State Bar Referral: 1-866-989-8227
• OWBPA: 29 U.S.C. § 626(f)
• DTSA: 18 U.S.C. § 1833(b)
• McLaren Macomb: 372 NLRB No. 58 (2023)

This template is provided for informational purposes only. West Virginia has unique regulatory requirements for WVHRA waivers (CSR 77-6), including plain English, explicit WVHRA reference, Bar referral number, and consideration/revocation periods. Consult a qualified West Virginia attorney before use.

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