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    Court Approves THQ Employee Severance and Benefit Extensions, As Long as They Sign Antidefamation Clause

    March 12, 2013 Written by Vivas Kaul

    While the bankruptcy at THQ has caused us, as gamers, to question what will happen to some of our favorite franchises in the future, it’s been easy to overlook the people at THQ. A source, under condition of anonymity, has told PSLS directly that the bankruptcy court in Wilmington, Delaware has authorized a compensation and benefits agreement for former THQ employees, who will receive severance and benefit extensions, something that is confirmed by court documents. This means that many of the workers from the former video game publisher will now receive some financial compensation as a result of the company’s bankruptcy filing.

    Rivian Bell, a spokesperson for THQ, confirmed for PSLS that the severance settlement will affect 196 former employees of THQ. The motion, filed February 19th, has apparently started to go into affect according to the original source. The agreement also contains an antidefamation clause as well as a confidentiality clause. The clauses, which have to be agreed to by any employees wishing to claim benefits and severance, prevent any former THQ employees from sharing their stories with the press or publicly. Unfortunately, this means that the inside story of the goings-on inside THQ leading up to the bankruptcy may never be known. The full agreement, from page 26 of the linked pdf above, is quoted below:

    AGREEMENT

    1. Termination of Employment. Employee’s employment with THQ will be or has been terminated effective ____________, 2013 (the “Termination Date”). Employee represents and warrants that Employee has not be extended an offer of permanent employment by any of the successful bidders that acquired any portion of the Debtors’ assets.

    2. Compensation & Benefits Agreement. Employee opts in to the following agreement between THQ and Employee by signing immediately below this section 2:

    a. THQ shall provide Employee with a cash payment in an amount equal to [ __ ], representing thirty (30) days of compensation and benefits earned by Employee, within one week after the Bankruptcy Court enters an order approving the Compensation & Benefits Agreement; and

    1. Employee, on behalf of Employee and Employee’s executors, legatees, devisees, administrators, successors and assigns, hereby and forever releases and discharges the Debtors and their past and present successors, parents, subsidiaries, sisters and affiliated corporations, divisions or other related entities, employee benefit plans and fiduciaries thereof, as well as the successors, predecessors, shareholders, officers, directors, including all members of the boards of directors of each of the Debtors, partners, heirs, assigns, agents, employees, attorneys and representatives of each of them, past or present, from any and all causes of action, judgments, liens, indebtedness, costs, damages, obligations, attorneys’ fees, losses, claims, liabilities and demands of whatever kind and character (“disputes”) arising out of or in any way related to Employee’s employment or business relationship with any of the Debtors except claims for Prepetition PTO. Employee specifically releases all disputes relating to or arising out of any California, municipal, or federal statute, ordinance, regulation, order, or common law, including, but not limited to, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000(e), et seq.; the Civil Rights Act of 1866, as amended, 42 U.S.C. Sections 1981, et seq.; the Equal Pay Act, as amended, 29 U.S.C. § 206(d); the Fair Labor Standards Act of 1939, as amended, 29 U.S.C.§ 201, et seq.; the Worker Adjustment and Retraining Notification (WARN) Act, 29 US.C. § 2101, et seq.; the California Worker Adjustment and Retraining Notification Act, California Labor Code § 1400, et seq.; the Orders of the California Industrial Welfare Commission regulating wages, hours and working conditions; the California Fair Employment & Housing Act, as amended, Cal. Govt. Code § 12900, et seq.; the California Family Rights Act of 1991, as amended; California Government Code § 12945.2; the California Unfair Competition Law, California Business and Professions Code § 17200, et seq., as amended; the California Unruh Civil Rights Act, as amended, Cal. Civ. Code § 51, et seq.; each and every provision of the California Labor Code; Article 1 of the California Constitution; the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701, et seq.; the constitution and laws of the State of Texas including, without limitation, the Texas Human Rights Act; the Texas Labor Code; the Texas Employment Discrimination Law; the Texas Disability Discrimination Law; the Texas Communicable Disease Law; the Texas Right to Work Law; the Texas Minimum Wage Law; the Texas Workers’ Compensation Retaliation Law; and the Texas Payday Law (the “Released Matters”); the Americans with Disabilities Act of 1990, 42 U.S.C.§ 12100, et seq., as amended; the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601, et seq.; the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq.; the National Labor Relations Act, as amended, 29 U.S.C. § 151, et seq.; the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq.; the Genetic Information Nondiscrimination Act of 2008; and any action based on written or oral contract, quasi-contract, quantum meruit, implied contract, tort, wrongful or constructive discharge, breach of the covenant of good faith and fair dealing, defamation, libel, slander, fraud, misrepresentation, immigration issues, infliction of emotional distress, assault, battery, conspiracy, discrimination on any basis prohibited by statute or public policy, negligence, claims for vacation (except claims for Prepetition PTO) or severance pay, any interference with business opportunity or with contract, etc.
    2. EMPLOYEE further understands and acknowledges that:

    (i) Employee has been notified that the positions that appear on the attached Exhibit “A” as eligible for separation benefits are also being terminated from THQ.

    (ii) This Agreement constitutes a voluntary waiver of any and all rights and claims employee has against the Releasees as of the date of the execution of this Agreement, including rights or claims arising under the Age Discrimination in Employment Act;

    (iii) Employee has waived rights or claims pursuant to this Agreement in exchange for consideration, the value of which exceeds the payment or remuneration to which employee was already entitled;

    (iv) Employee is hereby advised that the employee may consult with an attorney of employee’s choosing concerning this Agreement prior to executing it;

    (v) Employee has been afforded a period of at least 45 days to consider the terms of this Agreement, and in the event that the employee should decide to execute this Agreement in fewer than 45 days, the employee has done so with the express understanding that the employee has been given and declined the opportunity to consider this Agreement for a full 45 days; and

    (vi) Employee may revoke this Agreement at any time during the seven (7) days following the date of execution of this Agreement, by furnishing written notice of such revocation to THQ Human Resources, 29903 Agoura Road, Agoura Hills, California, 91301, fax: (818) 871-7532, and this subparagraph 2(c) of this Agreement shall not become effective or enforceable until such revocation period has expired.

    d. The Release also extends to all disputes of every nature and kind by Employee against THQ, except claims for Prepetition PTO, whether known or unknown, suspected or unsuspected, past or present. Specifically, Employee hereby expressly waives any and all rights under Section 1542 of the California Civil Code, which reads in full as follows:

    A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.

    Employee acknowledges that he or she has separately bargained for the foregoing waiver of Section 1542. Employee and the Debtors intend that the provisions regarding the disputes released herein be construed as broadly as possible, and incorporate herein similar federal, state or other laws, all of which are similarly waived by the Employee.

    Employee accepts the foregoing settlement (check box):  Signature: _____________________

    Having employees agree to an antidefamation clause and a confidentiality clause is common in settlements of this kind. However, withholding financial compensation behind these agreements is a practice that is ethically debatable, especially considering that these were payments and bonuses that the employees were entitled to anyway.

    As an editorial aside, it’s fantastic news to hear that the employees of THQ will get compensation for their hard work. We just wish that the inside story could come out, but given the confidentiality and antidefamation clauses that seems very unlikely. Personally, I would find that story a fascinating read if it were to ever be revealed. Should we receive any further details, we’ll be sure to pass them along to you. So keep it locked to PSLS for any further developments.