Terminating the Employment Relationship

13. E XECUTION IN C OUNTERPARTS This provision enables parties to execute an agreement without having the parties sign the same piece of paper. For instance, the parties may sign where indicated on two separate copies of the agreement. Despite having two pieces of paper with only one party’s signature on each, the agreement is deemed executed. Oftentimes, these provisions also include a statement that fax signatures are deemed appropriate for purposes of deeming the agreement executed and enforceable. The following is a sample execution in counterparts clause:

This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. A photocopy, facsimile transmission or email of the Agreement, including signatures, shall be deemed to constitute evidence of the Agreement having been executed.

C. V ARIABLE P ROVISIONS

The following provisions are not standard. An employer may choose to include them in an agreement, depending on the circumstances.

1. R ESTRICTIONS ON N O R EEMPLOYMENT /N O R EHIRE C LAUSE AND AB 749 A no reemployment or “no rehire” clause has been a commonly included provision in a separation agreement that resolves a current employee’s claim against the employer. As discussed further below, there are now restrictions on the use of such clauses. A “no rehire” clause provides that the employee will not be eligible for future employment with the employer and that the employer may deny future attempts at reemployment without reason. For instance, if an employer and an employee agree to resolve a termination appeal via a separation agreement, part of the agreement may include the employer paying the employee money to resign in lieu of termination. The employer likely will not want to rehire the employee at any point in the future. If so, a no reemployment clause is essential so long as it does not run afoul of the statutory restrictions discussed below. The following is a sample no reemployment clause:

Jones agrees that in the future he will not seek nor accept employment with the City and that the City may reject without cause any application for employment with it by Jones.

In October 2019, California Governor Gavin Newsom signed AB 749, which prohibits “ no rehire ” clauses in certain employment dispute-related settlement agreements. 338 AB 749, which went into effect on January 1, 2020, and is codified as Code of Civil Procedure section 1002.5, prohibits settlement agreements from containing a provision that restricts an employee from obtaining future employment with an employer if that employee has filed a claim or civil action against the employer. Thus, if an employee files a claim against an employer in court, before an administrative agency, in an alternative dispute resolution forum, or under the employer’s

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