|
the
New York manufacturer of fine dance apparel for women and girls.
Click here to see a sample of our products and a
list of web sites for purchasing.
With Body Wrappers it's always performance at its best.
|
Go back to Flash Reviews
Go Home
Flash
News, 4-28: APAP "Letter Agreement"
In at Least One Case, Ex-employee Claims, Arts Presenters Sought to
Condition Severance on Confidentiality Agreement
By Paul Ben-Itzak
Copyright 2003 The Dance Insider
(Editor's Note: Arts
Presenters or APAP, a trade and service organization for theaters
across the US, is best known to dancers for its annual members conference,
in which dance and other companies present showcases to theaters
they hope will book them and keep their dancers employed. Because
of its essential utility to the livelihoods of dancers, the Dance
Insider has been closely following recent personnel developments
at the organization.)
One of the six employees fired by Arts Presenters March 7, as part of what the
organization said was a restructuring "of its operations and staff,"
has provided the Dance Insider with a hard copy of the following
letter, and permission to publish it. The letter, on blank stationary,
bears the signature of Arts Presenters president and CEO Sandra
Gibson. The employee, whose name and address are on the first page
of the letter and whose name is on the subsequent pages, has neither
signed nor initialed the copy the employee provided to the DI. Except
for omitting certain identifying features to protect the source
(the employee), the DI is publishing the entire contents of the
letter, as follows. (Where italics exist, they were in the document
provided us.) On Wednesday, the DI e-mailed copies of the text in
the letter to Gibson and to Patrick Madden, an APAP vice president,
as well as several related questions. Madden's response follows
the letter below.
PRIVATE AND CONFIDENTIAL
March 7, 2003
(Name)
(Address)
(Address)
Subject: Termination and Offer of Transition Assistance
Dear (Name of Employee):
As I informed you at
the meeting today, the Association of Performing Arts Presenters
("Arts Presenters" or the "Association") has made some very difficult
decisions relating to the restructuring. Among the many difficult
decisions was one to eliminate the position you now hold. As you
know, your employment with Arts Presenters is "at-will," which means
that you or the Association may terminate that employment at any
time. The Association has chosen to exercise that option. Your last
day of employment with Arts Presenters is today, March 7, 2003.
In order to assist you in your transition from Arts Presenters,
and to resolve any outstanding issues that you may believe that
you have with the Association, the Association will provide you
with certain monetary assistance in exchange for a waiver and certain
other promises from you. If you choose to reject the offer as
set forth below, you will receive your pay and unused leave payout
only through your last day at Arts Presenters.
In consideration of
your past contributions to Arts Presenters and its desire to resolve
all outstanding issues that could be raised by you, in exchange
for the promises set forth below and other good and valuable consideration
hereby acknowledged by the parties, you and Arts Presenters agree
to the following:
1. In exchange for agreement
to the terms of this Letter of Agreement, and except as to any breach
of the agreements as stated therein, Arts Presenters will provide
you with the following:
a. Arts Presenters will
pay you $(amount) (one week pay for each year with organization),
less all appropriate withholdings. Payments will be made under this
Letter ... Agreement on the eighth (8th) business day following
your execution of this Letter Agreement, unless you revoke your
acceptance under paragraph 7 (ix), below.
b. You have enrolled
in the Association's group medical/dental plans. The Association
will pay your premiums only through the end of this month. Your
COBRA notifications will be sent to you under separate cover.
c. Your participation
in the Association's retirement plan will end today. You may contact
TIAA-CREF to make arrangements for the transfer of your funds.
d. No other payments
will be made or benefits provided to you, in any form whatsoever,
other than as stated herein.
You agree not to discuss
(orally or in writing) this Letter Agreement and/or the circumstances
of your termination from Arts Presenters with any person who Arts
Presenters considers a business contact, including any current or
former employees of Arts Presenters, any Arts Presenters members,
vendors, prospective members, or prospective vendors. You also
agree to maintain as confidential the terms of this Letter Agreement
as well as information known to you regarding the operations, finances,
membership, and membership programs (both current and planned) of
Arts Presenters ("Arts Presenters' Confidential Information").
You may discuss with any potential employer only the nature and
scope of your job responsibilities while at Arts Presenters. In
that regard, to explain why you are seeking new employment, you
agree to use the following statement when speaking to potential
employers or persons from whom you intend to request a reference:
"Arts Presenters has restructured itself and my position was eliminated
in the process." You understand and agree that your agreement with
respect to the confidentiality of this Letter Agreement and Arts
Presenters' Confidential Information is a material inducement for
Arts Presenters to enter into this Letter Agreement.
2. You agree not to
disparage Arts Presenters or any of its officers, directors, shareholders,
agents, representatives, partners, employees, consultants, attorneys,
and successors in any manner whatsoever whether orally or in writing,
to any person, including current and former employees of Arts Presenters.
You further agree not to encourage anyone else to disparage or criticize
Arts Presenters, or put them in a bad light. You agree to direct
all requests for references or employment verification to me (Sandra
Gibson) or a person specifically designed by me to respond to such
inquiries.
3. Upon execution of
this Letter Agreement, you agree to release and forever discharge
Arts Presenters and its officers, directors, shareholders, agents,
representatives, partners, employees, consultants, attorneys, successors,
heirs and assigns, from all manner of actions, claims and demands,
whether known or unknown, liquidated or unliquidated, fixed or contingent,
direct or indirect, based in contract or otherwise, including, but
not limited to, any claims in tort, contract or otherwise, for payment
of wages or commissions, constructive discharge, or employment discrimination
(whether under Title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act (including the Older Workers Benefit
Protection Act), the Americans With Disabilities Act, the Employee
Retirement Income Security Act, the Fair Labors Standards Act, the
Civil Rights Act of 1866, the District of Columbia Family and Medical
Leave Act, and the District of Columbia Human Rights Act, and all
federal, state, and local employment and/or employment discrimination
statutes, regulations, or otherwise), that you ever had, now have,
or hereafter can, shall, or may have, against Arts Presenters, relating
in any way to (i) your past employment by Arts Presenters; (ii)
your termination from Arts Presenters; and (iii) any other conduct
through the date you execute this letter.
4. You agree that this
Letter Agreement precludes you from commencing any suit in law,
equity or otherwise, against Arts Presenters and its officers, directors,
shareholders, agents, representatives, partners, employees, consultants,
attorneys, successors, heirs and assigns, for any claim, loss, or
any relief whatever and this Letter Agreement shall operate conclusively
as an estoppel in the event of any such claim, action, or proceeding
and may be pleaded accordingly; provided however that this
Letter Agreement does not limit your right to file an administrative
charge of discrimination or a complaint challenging the validity
of the above waiver.
5. The parties hereto
understand and agree that the terms of this Letter Agreement generally
meet their stated expectations and demands and are necessary for
the reasonable and proper protection of Arts Presenters. You understand
that Arts Presenters has been induced to enter into this Letter
Agreement upon your representation and agreement to the above-stated
terms.
6. You acknowledge that
you: (i) have been offered, prior to the execution of this Letter
Agreement, a ... (withheld at this time of publication by the Dance
Insider, but not from the copy the DI provided to APAP) ... period
to consider the terms of this Letter Agreement, and you have used
as much or as little of that time as you have determined you need
to consider the terms of this Letter Agreement; (ii) have been provided
with the Statutory Disclosure in Attachment A; (iii) are waiving
claims under the Age Discrimination in Employment Act; (iv) are
hereby advised to consult with legal counsel of your own choosing
prior to execution of this Letter Agreement; (v) fully understand
the terms and conditions contained herein: (vi) have entered into
this Letter Agreement of your own free will and are not under any
undue pressure or duress; (vii) are not waiving your rights or claims
that may arise after the date this Letter Agreement is executed;
(viii) have received as consideration for the waivers contained
herein money and other benefits in addition to that which you are
already entitled; and (ix) understand that, notwithstanding any
other timeframes mentioned above, for a period of seven (7) days
following your execution of this Letter Agreement that you may revoke
your acceptance, and the Letter Agreement will not be effective
or enforceable by either party until such revocation period has
expired.
Please review the terms
set forth in this Letter Agreement and confirm, by your signature
below and your initial on each page, your agreement to such terms.
I trust that these arrangements will serve to bring our employment
relationship to an amicable conclusion.
Please respond on or
before (date withheld by the Dance Insider), with a signed and initialed
copy of this letter.
Sincerely,
Association of Performing
Arts Presenters
(Editor's Note: What
appears to be Gibson's handwritten signature appears here. The DI
has compared to a recent signature in the APAP members' newsletter.)
Sandra Gibson,
President & CEO
CONFIRMATION, ACKNOWLEDGMENT, AND AGREEMENT BY (Name withheld by
the DI)
I, (name withheld by
the DI), hereby confirm and acknowledge that I have had ample opportunity
to read and review this Letter Agreement with my advisor. I agree
to the representations, terms, and conditions set forth above and
I acknowledge that the foregoing constitutes the entire agreement
between Arts Presenters and myself.
(Editor's note: At this
point, spaces are provided for 'Employee,' 'Date,' 'Witnessed by,'
'Name,' and 'Date,' none of which are filled out in the copy provided
to the DI.)
(Following authorization by the employee to publish this letter
-- again, not signed by the employee in the copy the employee provided
to the DI -- the DI e-mailed a copy of the letter's text to Sandra
Gibson and Patrick Madden, APAP vice president, preceded by the
following question: "For a story we are working on to be published
Thursday April 24, can you please comment on the letter below? We
have it from a reliable source that APAP and Ms. Gibson presented
the letter to one of the employees fired March 7...." At presstime,
Ms. Gibson had not responded. Mr. Madden's response follows.)
Ben(sic):
I have read your email
and it appears that you have received incorrect information from
your source(s). To the extent that you are asking again about personnel
matters, as I told you in our earlier exchange, Arts Presenters
is committed to maintaining personnel matters as confidential and
any personnel information that you think you have can only have
been obtained by you under improper circumstances. You are asking
Arts Presenters to comment on or confirm information about something
that you are representing is a "PRIVATE AND CONFIDENTIAL" communication.
Based on your representation, we must assume that whatever it is
that you think you have is meant to be both private and confidential,
therefore, we will not allow ourselves to be in a position to violate
the privacy rights of any individual or assist you (or others) in
doing so.
You should also know
that Arts Presenters has received confirmation from our former employees
that they wish to have their personnel matters remain both private
and confidential. I'm sure you understand the sensitivities. I must
request that you not reveal any such information. In light of all
of the above considerations, other than informing you that your
email contains incorrect information, I cannot respond to the individual
allegations and inquiries.
If you publish the information
contained in your email, you are on notice that you and your publication
will be at risk for various tort claims by Arts Presenters and others.
Please understand that
the nature of your request limits my ability to provide much of
a response. I would welcome the opportunity to talk with you about
a story regarding our new programs, technology, and communications
plans.
Patrick Madden
Vice President, External Affairs
Arts Presenters
(The Dance Insider stands by its claim to have received the letter
under proper circumstances, as detailed above, and by its belief
that the letter is a credible claim.)
Go back to Flash Reviews
Go Home
|