HOME WAS TRANSFERRED WITH A FORGED DEED

 

AMZALAG v. ZBT HOLDINGS INC., 2023 NY Slip Op 30593 - NY: Supreme Court 2023:

"In Motion Seq. #13, filed March 15, 2022, plaintiff moves for summary judgment, and requests and order "striking the Defendants' defenses, awarding Summary Judgment to the Plaintiff, and dismissing the Defendants' counterclaims, thereby directing the Kings County Register to cancel the 8/5/2005 deed, as to Block 01755 Lot 0051, recorded on 1/27/2006, in CRFN XXXXXXXXXXXXX, with Judgment as against the Defendants, except Bank of America, but canceling its mortgage as to the same premises, dated March 14, 2006, recorded March 21, 2006, CRFN XXXXXXXXXXXXX, as assigned by MERS, on 2/12/10" and also asks for a money judgment on plaintiff's claim for an accounting.

Plaintiff supports his motion with numerous documents. One is a certified report from the federal government of his passport record information, which indicates that he was not in the United States when the deed was allegedly executed. The notary indicated on the deed from plaintiff to ZBT Holdings Inc. was deposed [Doc 398] and testified that the signature on the deed is not his. He testified that he does not know the plaintiff, but he did know defendant Farhad Homayoonfar, who was a mortgage broker, and that he had notarized many documents involving mortgages provided by First United Mortgage Banking, the company Mr. Homayoonfar worked for. The documents connected with the 2005 deed indicate that the transfer was made without payment of any consideration. Plaintiff has provided at least one affidavit of the facts as he understands them, at Document 95.

Defendant Bank of America responded to this motion [Doc 451] on May 12, 2022, and states in counsel's affirmation that "To the extent that Plaintiff seeks to have the mortgage on the premises discharged, BANA [Bank of America N.A.] does not contest that relief. Said mortgage was dated March 14, 2006, and recorded March 21, 2006, in CRFN XXXXXXXXXXXXX, in the Office of City Register for the County of Kings and was as assigned by Mortgage Electronic Registration Systems on February 12, 2010." Bank of America concludes that they do not oppose the plaintiff's motion, but ask that the court not construe the motion to "seek a money judgment from Bank of America."

The court finds that plaintiff has brought this action against all necessary parties, that plaintiff makes a prima facie case for the relief requested, and thus plaintiff is entitled to a declaratory judgment that the deed dated 8/5/2005 is void and should be cancelled of record. This deed conveyed the property at issue to ZBT Holdings, Inc., which, according to the NYS Department of State Division of Corporations' website, was formed in February of 2005, and decedent is listed as the CEO. Then, according to the copies of the deeds provided by plaintiff, Farhad Homayoonfar as principal of ZBT Holdings Inc. executed a deed to himself alone in 2006, and subsequently, his wife, as executor, executed a deed from his estate to herself alone in 2017, and then, a few weeks later, executed a deed to defendant 131 Vernon LLC for no consideration. All of these people and entities have been named and served and have answered the complaint. The mailing address for 131 Vernon LLC on the NYS Department of State Division of Corporations' website is Ms. Homayoonfar's home address in Great Neck, NY. This is the address she listed on the 2017 deeds she executed. This is also the address she indicated on her October 2022 multiple dwelling registration for the property with NYC HPD, according to their public website, which indicates that she is the managing agent for the premises, a four-family multiple dwelling.

The court notes that a forged deed is void ab initio, and, as such, any mortgage or encumbrance on real property based on a forged deed is also void. (see Faison v Lewis, 25 NY3d 220 [2015]).

The effect of the orders precluding the defendants from "offering evidence, testifying at trial or submitting an affidavit in response to any dispositive motion" requires the court to disregard the affidavit [Doc 472] provided by Ms. Homayoonfar in opposition to the motion and in support of the defendants' cross-motion (Motion Sequence #16) to amend their answer.

In conclusion, plaintiff has established, with uncontroverted evidence in admissible form, that the deed dated August 5, 2005 and recorded on January 27, 2006, was forged. Therefore, he is entitled to summary judgment and a declaratory judgment on his first cause of action, that that deed, as well as the subsequent deeds, are void and should be cancelled of record. The defendants have failed to overcome the motion and raise any triable issues of fact with regard to the plaintiff's first cause of action to quiet title.

In addition, plaintiff has established that he is entitled to summary judgment and a declaratory judgment on his third cause of action, that that mortgage executed by defendant Farhad Homayoonfar when he did not have valid title to the premises should be declared to be void and should be cancelled of record. Bank of America, the holder of the mortgage, does not oppose this branch of the motion. The defendants' counterclaim for equitable subrogation is hereby dismissed. They do not have standing to assert such a claim.

With regard to the plaintiff's second cause of action, for an accounting, the court finds that the money judgment for the sum requested by plaintiff cannot be granted. An inquest must be held to determine the amount due to plaintiff. There are the issues of the rents and profits, expenses, mortgage payments, and the like, which must be ascertained. However, there are other facts to be determined. In Document 95, plaintiff's affidavit alleges that he did not apply to the NYC Department of Buildings in 2007 for a Building Permit. Thus, he presumably did not oversee the renovation work or pay for it. To be clear, defendants have asserted a counterclaim for unjust enrichment. The preclusion order does not apply to their counterclaim. They are entitled to testify and submit evidence in support of the counterclaim. While the court could sever the counterclaim, so plaintiff could have an inquest, and defendants could have a trial, this would not serve the interests of judicial economy. Therefore, the court finds that both of these proceedings should take place before a justice, pursuant to the note of issue requesting a bench trial filed by plaintiff in 2022. The court will need to ascertain the net amount plaintiff is entitled to, after deducting any sums defendants establish they are entitled to be reimbursed for."

STARTING A LAWSUIT IS NOT ABUSE OF PROCESS

Is this being zealous or over lawyering - an action is started and the answer includes a counterclaim is for abuse of process in an attempt to intimidate the plaintiff.

LEE LITIG. GROUP, PLLC v. A & B REST. GROUP, LLC, 2023 NY Slip Op 31116 - NY: Supreme Court 2023:

"Concerning the crossclaim for abuse of process, an "action for abuse of process lies in the improper use of process after it is issued." (Williams v. Williams, 23 NY2d 592 [1962] quoting Dean v. Kochendorfer, 237 NY 384 [1924]; Hauser v. Bartow, 273 NY 370 [1937]). "Abuse of process has three essential elements: (1) regularly issued process, either civil or criminal, (2) an intent to do harm without excuse or justification, and (3) use of the process in a perverted manner to obtain a collateral objective" (Curiano V. Suozzi, 63 N.Y.2d 113 [1984]). "The mere commencement of a lawsuit cannot serve as the basis for a cause of action alleging abuse of process" (Geraci v. Gatsby Dining LLC, 2020 NY Slip Op 32148[U] [Sup Ct. Kings Cty 2020]; Lynn v. McCormick, 153 AD3d 688 [2d Dept 2017]). In this case, the counterclaim asserts that Lee's commencement of this litigation is abuse of process because plaintiff knew that the underlying action had already been settled. Defendant's claim that the continuation of the litigation is separate from the commencement of the action is unavailing. Defendants cannot bring an abuse of process claim based upon the commencement of an action, so this counterclaim must also be dismissed."

DIVORCE - LEGAL FEES DURING AN APPEAL WITH STAY

Kaplan v. Kaplan, Date filed: 2023-03-30, Court: Supreme Court, Nassau, Judge: Justice Stacy D. Bennett, Case Number: 800273/20:

"CPLR §5519(a)(2) provides that a stay may be obtained without court order where “the judgment or order directs the payment of a sum of money, and an undertaking in that sum is given that if the judgment or order appealed from, or any part of it, is affirmed, or the appeal is dismissed, the appellant or moving party shall pay the amount directed…” CPLR §5519(c) provides “the court from or to which an appeal is taken or the court of original instance may stay all proceedings to enforce the judgment or order appealed from pending an appeal or determination on a motion for permission to appeal in a case not provided for in subdivision (a) or subdivision (b), or may grant a limited stay or may vacate, limit or modify any stay imposed by subdivision (a), subdivision (b)…” (emphasis added).

This Court recognizes that there is an incongruity in the interplay between CPLR §5519 and DRL §237, DRL §237 allows for an award of legal fees to the “less monied” spouse in order to level the playing field and create a sense of equality between the parties however CPLR §5519 allows for a party with significantly more in resources to create a delay in the payment of legal fees for potentially years, creating the precise issue that the DRL §237 seeks to ameliorate. In Wechsler v. Wechsler, 8 Misc.3d 328 (Sup. Ct., N.Y. Co., 2005), the Court (Gische, J.) articulated the injustice associated with the utilization of CPLR §5519(a)(2) within the context of an award of interim attorney’s fees. The Court stated, in relevant part:

By appealing a decision awarding a non-monied spouse interim counsel fees, and then bonding the award to stay enforcement pending appeal, a monied spouse can compromise a nonmonied spouse’s ability to litigate the ongoing case proceeding at the trial level. The effect of the stay is to prevent the non-monied spouse from receiving money to pay professionals as the case continues. Thus, the monied spouse achieves indirectly what it could not do directly, depriving the nonmonied spouse of the ability to pay for representation while the case is ongoing.

In Karg v. Kern, 125 A.D.3d 527 (1st Dept., 2015), the First Department affirmed the lower court’s vacatur of an automatic stay of interim matrimonial counsel fees. The First Department held that the CPLR §5519 stay “prevent[ed] an even playing field in the litigation.”

In B.N. v. M.N., 76 Misc.3d 1202(a), 172 N.Y.S3d 919 (Sup. Ct., Nassau Co. 2022), an award of interim legal fees was the subject of an appeal, and the payor-husband posted an undertaking in the amount of the interim legal fees thereby creating a stay of enforcement of the Order. The Court (Dane, J.) initially made the threshold determination as the court of original instance, it had the authority pursuant to CPLR §5519(c) to vacate the stay imposed by the posting of the bond. Following a determination that the court had the power to vacate the stay, the court held that it was incumbent upon the Court to ensure that counsel fees pursuant to DRL §237 are “timely paid” and the Court relied, in large part upon the determination in Wechsler, that “the fact that the stay is automatic does not remove it from the purview of the court’s discretion to otherwise vacate, limit or modify the stay.”

This Court is vested with the power and authority to vacate or modify the stay created by the husband by virtue of his posting of a bond pursuant to CPLR §5519. The trial of this matter was concluded, and a Judgment of Divorce was issued. To the extent that the wife requires an award of fees associated with the pending appeal, the wife has legal remedies with respect to same. The fees awarded to the wife pursuant to the Decision and Order After Trial were not awarded as interim fees, but rather fees awarded after the parties submitted their respective post-trial briefs. There was no “unequal playing field” as a result of the financial inequity of the parties and the posting of the bond did not compromise the legal representation the wife received during the parties’ divorce. Indeed, while the husband enjoys the benefit of a stay with respect to his court-ordered counsel fee obligation, the Judgment of Divorce remains in full force and effect and to the extent that enforcement of that Order is necessary (other than the payment of attorney’s fees to wife’s counsel) the wife has the right to pursue same and seek relief pursuant to DRL §238.

This Court acknowledges the disjunction that exists by virtue of the self-imposed stay created by CPLR §5519(a)(2) and the award of interim attorney’s fees pursuant to DRL §237 to a “less monied” spouse in order to ensure that “the matrimonial scales of justice are not unbalanced by the weight of the wealthier spouse’s wallet.” See O’Shea v. O’Shea, 689 N.Y.S.2d 8 (1999). This case is distinguishable from the cases cited above as the award of legal fees was made at the conclusion of the matrimonial matter whereas the vacatur of the §5519(a)(2) stay in Wechsler, Karg and B.N., supra, was the result of a determination by the Court that the legal fees awarded were necessary to avoid an unfair advantage to the monied spouse during a divorce.

Based upon this Court’s determination the legal fees awarded within the Decision and Order After Trial were not awarded as and for prospective legal fees to “even” the litigation playing field relative to the prosecution/defense of a matrimonial action, this Court declines to vacate the stay pursuant to CPLR §5519(a)(2). Accordingly, the wife’s application to vacate the automatic stay of the Decision and Order After Trial dated July 29, 2022 and the Judgment of Divorce dated December 22, 2022 is hereby DENIED."

BATHROOM LAW

As set forth in SECTION 492, Access to restroom facilities, General Business (GBS) CHAPTER 20, ARTICLE 28-F:

§ 492. Access to restroom facilities. 1. A place of business open to
the general public for the sale of goods or services that has a toilet
facility for its employees shall allow any individual who is lawfully on
the premises of such place of business to use that toilet facility
during normal business hours, even if the place of business does not
normally make the employee toilet facility available to the public,
provided that all of the following conditions are met:

(a) the individual requesting the use of the employee toilet facility
has an eligible medical condition or utilizes an ostomy device, provided
that the place of business may require the individual to present
reasonable evidence that the individual has an eligible medical
condition or uses an ostomy device;

(b) two or more employees of the place of business are working at the
time the individual requests use of the employee toilet facility;

(c) the employee toilet facility is not located in an area where
providing access would create an obvious health or safety risk to the
requesting individual or create an obvious security risk to the place of
business;

(d) use of the toilet facility would not create an obvious health or
safety risk to the requesting individual; and

(e) a public restroom is not immediately accessible to the requesting
individual.

2. Reasonable evidence that an individual has an eligible medical
condition or uses an ostomy device shall include, but not be limited to,
at the option of the individual:

(a) a signed statement by a physician, nurse practitioner, or
physician assistant licensed under title eight of the education law, on
a form that has been developed by the department of health under
subdivision three of this section; or

(b) an identification card that is issued by a nonprofit organization
whose purpose includes serving individuals who suffer from an eligible
medical condition.

3. The department of health shall develop a standard electronic form
that may be signed by a health care provider as evidence of the
existence of an eligible medical condition. The form shall be posted on
the department's website in a printable format and include the following
information:

(a) space for the form bearer's name;

(b) space for the form bearer's address;

(c) space for the form bearer's date of birth;

(d) space for the health care provider's name, signature, and
statement as provided in subparagraph (ii) of paragraph (e) of this
subdivision;

(e) the following statements:

(i) "MEDICAL ALERT: RESTROOM ACCESS REQUIRED";

(ii) "The holder of this form suffers from Crohn's disease, ulcerative
colitis, other inflammatory bowel disease, irritable bowel syndrome, or
another medical condition that requires immediate access to a toilet
facility."

(iii) "Complaints regarding enforcement should be directed to the
state consumer protection division, or the county, city, or town office
of consumer protection as applicable"; and

(f) a reference to the Crohn's and colitis fairness act under this
article.

WHEN REDUCTION IN CHILD SUPPORT IS NOT WARRANTED

G.J.G. v. H.C.F., Date filed: 2023-03-24, Court: Family Court, Nassau, Judge: Support Magistrate Sondra Mendelson-Toscano, Case Number: F-06630-12/23E:

"A petitioner seeking to modify their child support obligation has the burden of proving that a substantial change in circumstances exists. See N.Y. FAM. CT. ACT §451(3)(a) (McKinney’s 2023); see also O’Donoghue v. O’Donoghue, 2023 N.Y. App. Div. LEXIS 1553, at *2 (2d Dep’t, Mar. 22, 2023); Cywiak v. Packman, 2023 N.Y. App. Div. LEXIS 1064, at *2 (2d Dep’t, Mar. 1, 2023); Lopez v. Campoverde, 201 A.D.3d 719, 720 (2d Dep’t 2022); Castelli v. Maiuri-Castelli, 198 A.D.3d 752, 753 (2d Dep’t 2021); Funaro v. Kudrick, 128 A.D.3d 695, 696 (2d Dep’t 2015); Radday v. McLoughlin, 106 A.D.3d 1015, 1015-16 (2d Dep’t 2013); Kasun v. Peluo, 82 A.D.3d 769, 771 (2d Dep’t 2011); Ish-Shalom v. Wittman, 81 A.D.3d 648, 648 (2d Dep’t 2011); Aranova v. Aranova, 77 A.D.3d 740, 40 (2d Dep’t 2010). In making such determination, a court must consider, inter alia, the following factors: (1) the children’s increased needs; (2) any cost of living increase if it creates greater expenses for the children, (3) a parent’s loss of income or assets; (4) a substantial improvement in a parent’s financial situation; and, (5) the children’s current and prior lifestyles. See Cywiak, 2023 N.Y. App. Div. LEXIS 1064, at *2-*3; see also Castelli, 198 A.D.3d at 753; Bishop v. Bishop, 170 A.D.3d 642, 644 (2d Dep’t 2019); Baumgardner v. Baumgardner, 126 A.D.3d 895, 896-97 (2d Dep’t 2015); see also Fantel v. Stamatatos, 59 A.D.3d 717, 717-18 (2d Dep’t 2009). The relevant time period for the purposes of deciding a modification application is the time frame between when the order sought to be modified was issued and the filing of the modification petition. See O’Donoghue, 2023 N.Y. App. Div. LEXIS 1553, at *2-*3; see also Cywiak, 2023 N.Y. App. Div. LEXIS 1064, at *3; Tomassi v. Suffolk Cty. Dep’t of Soc. Servs., 144 A.D.3d 930, 931 (2d Dep’t 2016); Saraguard v. Saraguard, 125 A.D.3d 982, 983 (2d Dep’t 2015); Kasun v. Peluso, 82 A.D.3d 769, 771 (2d Dep’t 2011).

The Court finds that Mr. G has failed to meet his burden of proof. See Cywiak, 2023 N.Y. App. Div. LEXIS 1064, at *3 (affirmed; support magistrate properly dismissed modification petition where father failed to establish reduction in income since last order and value of his assets increased since that time). By Mr. G’s own admission, for the last twelve years, he has been without a stable job or steady housing. The parties’ last modification was entered in 2018. Mr. G’s 2018 petition alleged a decrease in income due to a lost job. Magistrate Satterthwaite’s notes reflect that Ms. F agreed to appreciably reduce Mr. G’s child support obligation because Mr. G was residing in a shelter and had just finished drug rehabilitation. The facts contained within Magistrate Satterthwaite’s notes were testified to at the instant trial. Given that Mr. G was unemployed in 2018 when the parties’ last order was modified, the proof showed that Mr. G’s income has actually increased since he is now gainfully employed earning $10.00 an hour. Taking into consideration the totality of the evidence presented, there exists no substantial change in circumstances supporting a downward modification.

Assuming arguendo that the Court found that Mr. G’s salary decreased, a party’s own decisions and actions do not justify a reduction in his or her child support obligation. See e.g. Roberts v. Roberts, 176 A.D.3d. 1226, 1227 (2d Dep’t 2019) (affirming denial of downward modification; finding father’s alleged decrease in income was result of “self-created hardship”); Lorenzo v. Lorenzo, 146 A.D.3d 959, 960 (2d Dep’t 2017) (upholding support magistrate’s determination; father failed to establish loss of employment was through no fault of his own); Austein-Gillman v. Gillman, 292 A.D.2d 524, 524 (2d Dep’t 2002) (affirmed: father’s “financial deterioration was caused by his own actions and decisions); Grettler v. Grettler, 12 A.D.3d 602, 603 (2d Dep’t 2004) (self-imposed hardship due to arrest and resulting employment termination insufficient for downward modification); Doyle v. Doyle, 230 A.D.2d 795, 796 (2d Dep’t 1996) (child support reduction unwarranted where father decided to alter circumstances by investing assets in new business venture). Thus, Mr. G’s decision to leave New York and relocate to Pennsylvania, because of New York’s alleged bad influence on him and his mother’s alleged ailment,1 fails to sustain his downward modification application.2

Footnotes

1. See Maria T. v. Kwame A., 35 A.D.3d 239, 240 (1st Dep't 2006) (choice to forego employment and care for sick parent inappropriate where child support has been ordered); see also Griffin v. Griffin, 294 A.D.2d 188, 188 (1st Dep't 2002) (decisions to attend school or care for family member rather than work are impermissible for child support purposes)

2. This Court may not based its decision on sympathy, but rather must base its decision on the facts as applied to the law. See e.g. Circus Disco, Ltd. v. N.Y.S. Liquor Authority, 51 N.Y.2d 24, 38 (1980) (judges must base their decisions upon laws and not sympathy); People v. Leggett, 76 A.D.3d 860, 861-62 (1st Dep't 2010) (judges must ensure fair and impartial trials); Mertsaris v. 73rd Corp., 105 A.D.2d 67, 92 (2d Dep't 1984) ("[J]udges must examine a case with their heads and not their hearts."); People v. Rogers, 13 Abb. Pr. 370, 381 (N.Y. Sup. Ct., Second Dist., Nov. 1872) ("A judge who from sympathy for the accused or for any other cause should do so, would inflict an unjustifiable injury upon the public interests.")."

ENFORCING RIGHTS OF SPECIAL EDUCATION STUDENTS AND FAMILIES

As a private bar attorney with Children and Family Law Division of the Massachusetts Committee for Public Services, I get updates on recent cases and here is one (which I hope I am allowed to reprint) about a recent Supreme Court case which provides more remedies for families with disabled children who have been harmed by schools. 

Perez v. Sturgis Public Schools, No. 21–887, slip op. (U.S. Mar. 21, 2023)

Michelle Scavongelli

Senior Counsel, The EdLaw Project

 

REQUIREMENT OF EXHAUSTION NO LONGER A BAR TO RECOVERY OF DAMAGES FOR SPECIAL EDUCATION STUDENTS AND THEIR FAMILIES Last week, the United States Supreme Court handed down a unanimous decision in Perez v. Sturgis Public Schools, No. 21–887, slip op. (U.S. Mar. 21, 2023). The Court held that the Individuals with Disabilities Education Act’s (IDEA) exhaustion requirement does not apply to lawsuits seeking only money damages under the Americans with Disabilities Act (ADA).

The plaintiff, Miguel Luna Perez, had attended Sturgis Public Schools since he was nine years old. Mr. Perez is deaf. To accommodate his disability, the school was required to provide him with aides to translate classroom instruction into sign language. However, the aides assigned to Mr. Perez were either unqualified or largely absent from the classroom.

The district also inflated Mr. Perez’s grades, advancing him from grade to grade without regard to his progress. That led Mr. Perez and his parents to believe he was on track to graduate with his class. The school reached out just months before graduation to inform them that Mr. Perez would not be awarded a standard diploma.

Mr. Perez and his family filed a complaint with the Michigan Department of Education under the IDEA, claiming that the school district had failed to provide Mr. Perez a free and appropriate public education (FAPE). They settled with the school district before the case went to a hearing. According to the settlement, the school district agreed to provide Mr. Perez with relief available under the IDEA, including additional schooling at the Michigan School for the Deaf as well as additional compensatory education.

Mr. Perez then filed a lawsuit under the ADA seeking monetary relief for harms flowing from Sturgis’ failure to provide FAPE. The school district objected. It argued that the IDEA required Mr. Perez to “exhaust” the administrative procedures in the IDEA—that is, file a due-process complaint and litigate the case to a final administrative decision before he could file a lawsuit under the ADA.

The Court disagreed. It held that the exhaustion requirement only applies when a plaintiff asks for remedies that are also available under the IDEA, such as injunctive relief or compensatory education. Because the remedy that Mr. Perez is seeking—monetary damages—is not available under the IDEA, his lawsuit may proceed. He had already obtained the relief available under IDEA through the settlement of the IDEA claim.

The Court’s holding will allow students who have been denied FAPE to settle their IDEA claims and still receive the monetary damages to which they are entitled under ADA. School districts may respond by requiring a general release of all claims, including ADA claims, to settle an ADA claim.

Perez represents a significant departure from prior practice. In 2017, the Court held that the IDEA’s exhaustion rule applies when a plaintiff seeks relief for the denial of FAPE. Fry v. Napoleon, 580 U.S. __ (2017). The Court reasoned that providing FAPE is the IDEA’s “core guarantee,” and so claims seeking relief for denial of FAPE must be channeled through the statute’s administrative processes. The Court specifically reserved the question of whether damages only ADA claims could be brought without exhausting administrative remedies under IDEA.

The ruling in Perez clarifies that the exhaustion requirement does not apply when a plaintiff seeks only money damages under ADA even if the gravamen of the claim is related to FAPE. The Court’s decision in Perez ensures that students’ allegations of harm and requests for compensation will not be administratively barred.

 

HAPPY EASTER

 

HAPPY PASSOVER

 

SEVERANCE AGREEMENT CLAUSES AND THE NLRB

On February 21, 2023, the Board issued McLaren Macomb, 372 NLRB No. 58, returning to longstanding precedent holding that employers violate the National Labor Relations Act (NLRA or Act) when they offer employees severance agreements that require employees to broadly waive their rights under the Act. Specifically, the Board held that where a severance agreement unlawfully conditions receipt of severance benefits on the forfeiture of statutory rights, the mere proffer of the agreement itself violates Section 8(a)(1) of the Act because it has a reasonable tendency to interfere with or restrain the prospective exercise of those rights - both by the separating employee and those who remain employed.

According to NLRB general counsel: “Lawful severance agreements may continue to be proffered, maintained, and enforced if they do not have overly broad provisions that affect the rights of employees to engage with one another to improve their lot as employees” ....[However], the future rights of employees as well as the rights of the public may not be waived in a way that precludes future exercise of Section 7 rights, including engaging in protected concerted activities and accessing the Agency.”

See NLRB General Counsel Issues Memo with Guidance to Regions on Severance Agreements