Excerpted from Texas Employment Law Letter, written by attorneys at the law firm Ford & Harrison LLP

It's often the small things that matter. And that's especially true when ending the employment relationship with an employee. Here are some developments and some thoughts on how to make your procedures better and stronger.

Present tense/past tense

Here's a quick quiz: The Older Workers Benefit Protection Act (OWBPA) provides that employees must be told to consult with an attorney before signing a separation agreement. If not, the release is invalid. But is the following language OK?

Employee was given a reasonable amount of time within which to consider this agreement before signing it, and employee has been advised to consult with her attorney before executing this agreement.

It would seem to fit, don't you think? Well, not according to some courts. The release is invalid because it isn't written in a manner reasonably calculated to be understood by the employees who are asked to sign it. The language that the employee acknowledges she has been advised to consult with an attorney was deemed insufficient by a court because the employer must advise the employee - in the present, the here and now - to consult with an attorney before signing the waiver. Courts have interpreted the OWBPA to mean that the release language must actually and currently advise the employee of her rights. That's true even if the employer, in the past, told the employee about her rights, including the right to consult a lawyer.

One court said (sort of like your high-school English teacher):

Although [the release] makes reference to seeking counsel, it does not use any verbs of command or direction to caution, warn, or recommend that the employee consult an attorney. Rather, the release uses passive language that requires the employee to infer the right to discuss the release with an attorney. Asking the employee to make such an inference in insufficient under the current case law.

So try this: "The company hereby advises employee in writing to consult with an attorney prior to executing this agreement." It's the small things that save us or send us to the bottom. Cole v. Gaming Entertainment LLC, 199 F.Supp. 208 (D. Del.).

Commission nightmare

We see this all the time: A salesperson is fired and then turns around and files a breach-of-contract lawsuit saying that she's still owed commissions. That often occurs when the employee makes a sale but the commission isn't due until the customer's payment is received and the employee is fired between the sale and the payment.

Think about this: In an exit interview, have the employee sign a form acknowledging that all commissions owed have been paid. And as long as you're at it, it's not a bad idea to make sure agreements with salespeople provide that they must be employed as of the commission's due date to receive it. Not employed? No commission.

Reimbursement expenses

When an employee leaves, she may have outstanding reimbursement invoices. That's especially so for executives or salespeople. Put into any settlement release that the employee has submitted all such invoices and that they have been paid, or provide the employee with a short window of time - say two or three days - in which to submit any invoices she wishes to be considered for payment. That way, you head off problems at the pass.

Bottom line

The best time to prepare for the future is the present. Take a minute to implement these changes, and you'll be glad you did.

Copyright © 2005 M. Lee Smith Publishers LLC. The above article was contributed by TEXAS EMPLOYMENT LAW LETTER. Click here to read more about the print newsletter and its editors. Texas Employment Law Letter does not attempt to offer solutions to individual problems but rather to provide information about current developments in Texas employment law. Questions about individual problems should be addressed to the employment law attorney of your choice. The State Bar of Texas does designate attorneys as board certified in labor law.