EXHIBIT 10.1




 


SEPARATION AND RELEASE AGREEMENT


 


THIS SEPARATION AND
RELEASE AGREEMENT (“Agreement”) is made by and among Barrett Business Services, Inc. (“BBSI”), and Michael
L. Elich, an individual residing at [●], WA 98607 (“Employee”). “BBSI” and
 "Employee" are collectively referred to as the “Parties.” The Parties agree as follows:


 


1.                  
Background. Employee was formerly employed as BBSI’s President and Chief Executive Officer. Employee resigned
as President and Chief Executive Officer and as a director of BBSI on March 5, 2020, and Employee’s employment with
BBSI also ended as of March 5, 2020 (“Termination Date”). BBSI has offered Employee severance pay, beyond which Employee
would otherwise be entitled, in consideration of Employee’s release and waiver of all claims against BBSI arising from Employee’s
employment with and termination of employment from BBSI. Employee has been given adequate time within which to consider this Agreement
under the advice of an attorney of their choice and enters into this Agreement voluntarily. Employee wishes to accept the severance
pay and agrees to abide by the covenants, terms and conditions set forth in this Agreement.


 


2.                 
Effective Date. Unless otherwise revoked by Employee as provided in Paragraphs 17 and 18 below, this Agreement shall
be effective on the eighth (8th) day following the date Employee signs and returns this Agreement to BBSI (the “Effective
Date”).


 


3.                 
Separation Pay. As separation pay, BBSI agrees to pay Employee the lump sum of $1,200,000 (one million two hundred
thousand dollars). The separation pay is consideration for the terms of this Agreement, and Employee acknowledges the adequacy
of this consideration. BBSI shall make the lump sum payment within fourteen (14) days of the date that Employee signs this Agreement,
so long as Employee does not revoke it pursuant to Section 16. The separation pay shall be subject to all applicable payroll taxes
and deductions. Employee acknowledges and understands that it is Employee’s responsibility to comply with any obligation
to pay taxes with respect to any proceeds received from BBSI in connection with this Agreement, and Employee agrees to indemnify
and hold BBSI harmless from any failure on Employee’s part to comply with those obligations. BBSI will also reimburse employee
for all business expenses previously submitted including expenses in the amounts respectively of $55,320.34 and $1,217.98. BBSI
shall make such reimbursements within fourteen (14) days of the date that Employee signs this Agreement, so long as Employee does
not revoke it pursuant to Section 16.


 


4.                 
Release by Employee. In consideration of the promises made and the separation pay provided herein, Employee hereby
fully and forever waives, releases and discharges and covenants not to sue BBSI and its current and future agents, employees, attorneys,
insurers, officers, shareholders, directors, parent companies, subsidiaries and related companies and entities (collectively the
 "Released Parties") from and against any and all liabilities, claims, demands, actions and causes of action, suits, charges,
damages, or other demands or claims of any kind whatsoever known or unknown, foreseen or unforeseen, including but not limited
to those involving any matter arising out of or in any way related, directly or indirectly, to Employee's employment with BBSI
or the termination thereof (the "Claims"). The Parties agree and acknowledge that the Claims released include, but are
not limited to, any Claims or actions based upon any common law tort action, breach of contract, breach of the covenant of good
faith and fair dealing, misrepresentation, promissory estoppel, wrongful discharge, fraud, defamation, privacy violations, interference
with contract, infliction of emotional distress, hiring, rehire or reemployment rights, and any and all discrimination claims or
rights to sue that might be available to Employee under federal, state, or local statutes, laws, regulations or ordinances, including
but not limited to Title VII of the Civil Rights Act; the Americans with Disabilities Act, as amended by the ADA Amendments
Act of 2008; the Family and Medical Leave Act; the Fair Labor Standards Act; the Employee Retirement Income Security Act; the OFCCP
laws and related regulations, including Section 503 of the Rehabilitation Act, Section 4212 of the Vietnam Era Veterans Readjustment
Act, and Executive Order 11246, as amended; the Fair Credit Reporting Act; and any provisions of the Oregon Constitution, and Oregon
statutes and regulations concerning whistleblowing, civil rights, wages and hours, employee leaves, and any other statutes pertaining
to employment.


 






    
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5.                  
Claims Not Released by Employee. The general release and waiver of claims in paragraph 6 does not require Employee
to waive, release, or discharge any claims that Employee cannot lawfully waive, including without limitation claims for unemployment
benefits, or workers’ compensation benefits, and Employee represents that to the extent Employee has suffered a work-related
injury in the course of Employee’s employment with BBSI, Employee has already reported such injury to BBSI. Employee’s
release does not prohibit Employee from filing with a charge with the Equal Employment Opportunity Commission, or other similar
federal or state administrative agencies, although Employee waives any right to monetary relief related to such an administrative
charge or complaint or in an associated lawsuit. Employee’s release does not waive any rights to vested benefits, such as
pension or retirement benefits, the rights to which are governed by the terms of applicable plan documents. Employee does not release
existing rights to indemnification pursuant to the certificate of incorporation and/or by-laws or otherwise, and shall continue
to benefit from D&O and other insurance coverages to the same extent as other former BBSI executives generally.


 


6.                  
Release of Employee by BBSI. In consideration of the promises made herein, BBSI hereby fully and forever waives,
releases and discharges and covenants not to sue Employee and his current and future agents, employees, attorneys, insurers, and
his heirs, executors and assigns (collectively the "Employee Released Parties") from and against any and all liabilities,
claims, actions and causes of action, suits, charges, damages, or other demands or claims of any kind whatsoever known or unknown,
foreseen or unforeseen, including but not limited to those involving any matter arising out of or in any way related, directly
or indirectly, to Employee's employment with BBSI or the termination thereof (the "Company Claims"). The Parties agree
and acknowledge that the Company Claims released include, but are not limited to, any Claims or actions based upon any common law
tort action, breach of contract, breach of the covenant of good faith and fair dealing, misrepresentation, promissory estoppel,
wrongful discharge, fraud, defamation, privacy violations, and interference with contract.


 


Employee represents that he is currently not aware of (1) any potential claims against him or Company that have not been disclosed
to Company or (2) any facts that reasonably could give rise to a claim against him or the Company that have not been disclosed
to Company. Employee understands that Company has relied upon this representation in executing this release of Employee.


 


7.                 
No Pending Lawsuits. The Parties represent that each has not filed any lawsuits against the other or any of the other
Released Parties or the Employee Released Parties. Except as otherwise permitted under paragraphs 5 and 8, Employee promises and
agrees that Employee will not do so at any time in the future with respect to any Claims which arose on or before the Effective
Date of this Agreement.


 






    
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8.                 
Protected Rights. Nothing in this Agreement is intended to or shall interfere with Employee's rights under federal
or state laws to file a charge or complaint with any federal or state regulatory authority ("Government Agencies"). Employee
further understands that this Agreement does not limit Employee's ability to communicate with any Government Agencies or otherwise
participate in any investigation or proceeding that may be conducted, without notice to BBSI. However, Employee expressly waives
and releases any right of Employee to recover monetary relief related to such an administrative charge or complaint or in an associated
lawsuit.


 


9.                  
Ownership of Claims by Employee. Employee represents and warrants that Employee has not assigned or transferred any
Claim against the Released Parties to any third party. Employee further agrees to indemnify, defend and hold harmless each and
all of the Released Parties against any and all Claims based on, arising out of or in connection with any such transfer or assignment,
or purported transfer or assignment, of any Claims or any portion thereof or interest therein.


 


10.              
Earned Salary and Benefits. Employee acknowledges receipt of Employee's compensation and benefits earned and vested
through the Termination Date.


 


11.              
Continued Obligation Regarding Disclosure of BBSI Information. Employee acknowledges and reaffirms his continuing
duties to protect information of BBSI, as stated in Paragraph 7 of his Employment Agreement with BBSI, which became effective October
1, 2001. Employee further acknowledges and reaffirms BBSI’s continuing rights to enforce that paragraph, including the right
to injunctive relief, in addition to any other rights, damages, or remedies BBSI may have in law or equity. Pursuant to the Defend
Trade Secrets Act of 2016, 18 U.S.C. § 1833(b), Employee will not be held criminally or civilly liable under any federal or
state trade secret law for the disclosure of a trade secret that is made (i) in confidence to a federal, state, or local government
official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected
violation of law, or (ii) is made in a complaint or other document filed in a proceeding, if such filing is made under seal.


 


12.              
Continuing Covenants of Employee. Employee acknowledges and reaffirms his covenants to BBSI, as stated in Paragraph
8 of his Employment Agreement with BBSI, which became effective October 1, 2001. Those covenants include Employee’s covenants
not to compete, and not to solicit BBSI customers or employees. Employee further acknowledges and reaffirms BBSI’s continuing
rights to enforce that paragraph, including the right to injunctive relief, in addition to any other rights, damages, or remedies
BBSI may have in law or equity.


 


13.              
Continuing Duty to Cooperate. Employee agrees to cooperate with BBSI in the defense of third-party legal claims or
administrative charges that concern events that occurred during Employee’s tenure at BBSI. Employee agrees to make himself
reasonably available after the Termination Date to assist BBSI in defense of those claims or charges. Employee will be reimbursed
for expenses incurred in connection with such cooperation and to the extent that such cooperation exceeds 20 hours Employee will
be compensated at the rate of $700 per hour.


 


14.              
Non-disparagement. The Parties agree that they wish to end their relationship and part company in an amicable manner.
Accordingly, and except as otherwise permitted under paragraphs 5 and 8 or as otherwise required by law, Employee agrees to not
disparage, criticize, or demean Company, its work, services, or personnel to any third party or through any media, social media
platform, or other publication. In addition, except as otherwise required by law, Company agrees that its officers and directors
as of the Effective Date of this Agreement will not disparage, criticize, or demean Employee or his work or services to any third
party or through any media, social media platform, or other publication. Nothing in this Agreement shall be construed to limit
any person’s ability to communicate with any Government Agencies regarding a potential violation of federal or state laws
or regulations.


 






    
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15.              
Return of BBSI Property. Employee represents and warrants that Employee has made reasonable efforts to locate BBSI
property he may possess and has or shall promptly return to BBSI all such property in Employee's possession, including, but not
limited to computers, phones, smart phones, tablets, electronic storage devices, customer information, and all tangible and intangible
property belonging to BBSI or relating to Employee's employment with BBSI. Employee further represents and warrants that to the
best of his knowledge Employee has not retained copies, electronic or otherwise, of such property. If Employee discovers additional
BBSI property in his possession in the future, Employee shall promptly return it.


 


16.              
Age Discrimination in Employment Act Acknowledgments. In conjunction with the Age Discrimination in Employment Act:


 


A.                
Employee acknowledges that Employee has had a reasonable time within which to consider this Agreement before executing it,
and that no one coerced or hurried Employee into executing this Agreement;


 


B.                
Employee acknowledges that Employee has carefully read and fully understands all of the provisions of this Agreement, and
declares that the Agreement is written in a manner that Employee understands;


 


C.                
Employee acknowledges that Employee understands that Employee is, through this Agreement, releasing BBSI and all Released
Parties from any and all claims Employee may have against them and that this Agreement constitutes a release and discharge of claims
arising under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634, including the Older Workers’
Benefit Protection Act, 29 U.S.C. § 626(f) (“OWBPA”);


 


D.                
Employee declares that Employee’s agreement to all of the terms set forth in this Agreement is knowingly and is voluntary;


 


E.                 
Employee knowingly and voluntarily intends to be legally bound by the terms of this Agreement;


 


F.                 
Employee acknowledges and agrees that through this Agreement, Employee is receiving consideration in addition to anything
of value to which Employee is already entitled;


 


G.                
Employee acknowledges that Employee was advised and hereby is advised in writing to consider the terms of this Agreement
and consult with an attorney of Employee’s choice prior to executing this Agreement;


 


H.                
Employee acknowledges that Employee understands that rights or claims that may arise after the date this Agreement is executed
are not waived;


 






    
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I.                   
Employee understands that Employee has twenty-one (21) days to consider this Agreement, and in the event Employee decides
to execute this Agreement in fewer than twenty-one (21) days, Employee has done so with the express understanding that Employee
has been given and declined the opportunity to consider the Agreement for a full twenty-one (21) days and is knowingly and voluntarily
waiving the balance of the twenty-one (21) day period;






J.                   
Employee acknowledges that changes to the form of this Agreement, whether material or immaterial, shall not restart the
running of the twenty-one (21) day period; and


 


K.                
Employee acknowledges that Employee may revoke this Agreement at any time within seven (7) days after Employee executes
the Agreement and that this Agreement is not effective or enforceable until the eighth day following the execution of the Agreement.


 


17.              
Return and Revocation of Agreement. This Agreement must be signed by Employee and delivered to BBSI by the close
of business on April 24, 2020, or the separation pay offer contained within this Agreement will automatically terminate. The signed
Agreement must be personally delivered to P.K. Runkles-Pearson, Miller Nash Graham & Dunn LLP, 111 SW Fifth Ave., Suite 3400,
Portland OR 97201, mailed to and received by her, or emailed to her at p.k.runkles-pearson@millernash.com, with the original to
follow via mail. Employee shall have seven (7) days after signing and returning this Agreement to revoke Employee’s approval
and void the Agreement in its entirety. Any revocation of this Agreement within this seven (7) day period should be submitted in
writing and state “I hereby revoke my agreement to the Employment Separation Agreement and General Release.” The revocation
must be personally delivered to P.K. Runkles-Pearson, Miller Nash Graham & Dunn LLP, 111 SW Fifth Ave., Suite 3400, Portland
OR 97201, mailed to and received by her, or emailed to her at p.k.runkles-pearson@millernash.com with the original to follow via
mail. Regardless of the delivery method, Ms. Runkles-Pearson must receive the revocation within seven (7) days of the date this
Agreement was signed by Employee and returned to Ms. Runkles-Pearson. If Employee revokes and voids this Agreement, Employee will
not be entitled to the separation pay identified in Paragraph 3.


 


18.              
Other Terms. BBSI cannot guarantee whether or not Employee will be found eligible for or will be provided benefits
under any claim made for unemployment.


 


19.              
No Admission of Liability. This Agreement shall not be in any way construed as an admission by BBSI that it has acted
wrongfully with respect to Employee or any other person.


 


20.              
Binding Effect. This Agreement shall be binding on the Parties and their heirs, administrators, representatives,
executors, successors and assigns and shall inure to their benefit and that of their heirs, administrators, representatives, executors,
successors and assigns.


 


21.              
Severability. The provisions of this Agreement are severable. If any provision of this Agreement is held to be invalid
or unenforceable, it shall not affect the validity or enforceability of any other provision of this Agreement.


 


22.              
Entire Agreement. This Agreement sets forth the entire agreement between BBSI and Employee and supersedes all prior
oral or written agreements or understandings, if any, between BBSI and Employee concerning the subject matter of this Agreement.
This Agreement may not be altered, amended or modified, except by a subsequent written document signed by BBSI and Employee.


 






    
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23.              
Waiver. The failure of any Party to insist upon strict performance of any of the terms and provisions of this Agreement
shall not be construed as a waiver or relinquishment of any such terms or conditions or of any other term or condition and the
same shall be and remain in full force and effect. No waiver shall be claimed as to any term or provision of this Agreement unless
such waiver is in writing and signed by the Parties.


 


24.              
Attorneys' Fees. The Parties agree to pay their own attorney fees and costs incurred in the preparation and review
of this Agreement. In the event of any dispute or legal or equitable action arising from this Agreement, the substantially prevailing
party shall be entitled to its reasonable attorney's fees and costs.


 


25.              
Governing Law, Venue and Forum. This Agreement shall be construed in accordance with the laws of the state of Washington.
The Parties agree that the proper venue for any proceeding brought in state court pursuant to this Agreement shall be in Clark
County, Washington.


 


26.              
Code Section 409A. This Agreement is intended to be interpreted and applied so that the payments and benefits set
forth herein will be exempt from the requirements of Internal Revenue Code Section 409A. Accordingly, to the maximum extent permitted,
this Agreement will be interpreted to be exempt from Internal Revenue Code Section 409A.


 


27.              
Acknowledgment by Employee.


 


A.       Employee
acknowledges that Employee was free to and was advised and encouraged to retain an attorney to thoroughly discuss all aspects of
this Agreement, and specifically, Employee's knowing and voluntary waiver and release of rights as provided in paragraph 4, above.
Employee has carefully read and fully understands all the provisions of this Agreement, and Employee is knowingly, voluntarily
and of Employee's own free will entering into this Agreement.


 


B.       Employee
acknowledges that the separation pay Employee is to receive under the terms of this Agreement in exchange for Employee's release
and waiver is consideration to which Employee would not otherwise be entitled and that the consideration set forth herein is adequate
and satisfactory.


 


C.       Employee
acknowledges that Employee's employment with BBSI has been permanently and irrevocably severed on or before the Termination Date
and that BBSI has no obligation to re-hire, re-employ, recall or hire Employee in the future.


 


[signature page follows]


 




    
	SEPARATION AND RELEASE AGREEMENT
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PLEASE READ CAREFULLY. THIS AGREEMENT
INCLUDES A RELEASE OF CERTAIN KNOWN OR UNKNOWN CLAIMS. 


 


Read, Understood and Agreed to:


 





	Employee:	 
	 	 	 
	/s/ Michael Elich	 
	Michael L. Elich	 
	 	 	 
	Date:	4/22/2020	 
	 	 	 
	Barrett Business Services, Inc.:	 
	 	 	 
	 	 	 
	By:	/s/ Gary Kramer	 
	 	 	 
	Its:	President and Chief Executive Officer	 
	 	 	 
	Date:	4/22/2020	 




 






    
	SEPARATION AND RELEASE AGREEMENT
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