Waive Whistleblowers Away

Signed waivers are one of the best ways to avoid turning departed personnel into whistleblowers who report a home care company's alleged wrongdoings to the government. A signed waiver is a document in which a departing employee agrees to waive all of his or her legal rights against the employer in exchange for certain severance benefits.

Benefits might include continued salary, one-time severance pay, continued health benefits for a period of time, pension vesting for the current year, etc. The point of the waiver is to arm the home care company with something contractual to use for fighting back when confronted with a whistleblower claim by a terminated employee.

Waivers are certainly not without controversy, and home care companies can learn valuable lessons from existing federal law. The “Older Workers Benefit Protection Act” addresses specific requirements for waivers:

• The employee must be given no less than 21 days to consider whether to sign the waiver. Of course, severance benefits can be put “on hold” during this period.

• The employee should be encouraged to consult with counsel regarding the waiver.

• The employee has a period of not less than seven days to revoke his or her acceptance of the waiver.

• The waiver should specify the employment-related legal rights being waived by the employee.

The waiver should additionally include language providing the employer with a general waiver of all of the employee's legal rights against the employer, ‘whether arising under federal or state statute, common law, regulation or local ordinance.” While there may be other statutory requirements depending on the circumstances of the termination, these principles can serve us well as a background to address waivers in the context of health care fraud and abuse exposures.

Here are a few benefits from utilizing this strategy of waivers. First, the waiver is seen by the employee and the employer as a “deal” regarding the employee's smooth exit. The psychological perception of the “deal” is important. Second, if the provider has conditioned severance on whether the waiver is signed — if, for instance, company policy provides no severance unless the waiver is executed and not revoked — the employee has incentive to sign the waiver and sign it quickly. Third, because employees at all levels of the company are required to sign waivers to receive severance, the program has the perception of even-handedness.