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N. Negotiating Strategies to Maximize Post-Termination
There is no law requiring employers to pay severance unless they have done so in the past, if promises were made in a company handbook or manual, or if your contract has a clause requiring the company to pay a specified amount of severance. Stay calm when the boss calls you in and informs you of the termination. It is best to say as little as possible initially. Write down everything the company offers you. After receiving an initial offer, tell the employer you need time to think it over. Ask for the employer to confirm the proposed terms in writing. Avoid accepting the company's first offer if you can help it. Try to stay on the payroll while negotiations ensue. Stalling for time can help you learn important facts, including what other similarly situated terminated employees received in severance. Most importantly, your goal is to continue receiving regular wages as long as possible while negotiations are proceeding (before the severance package "kicks in"). If you are a salaried employee who works on a full-time basis, you have everything to win if you negotiate forcefully but quietly; thus, request another negotiating session to obtain more benefits.
Tip:Employers sometimes violate discrimination laws by paying different severance packages to terminated workers. When they fail to act consistently, they commit illegal acts. For example, say you are fired suddenly due to a business reorganization and had worked at the company for four years. You are initially offered eight weeks' severance pay but learn that a male employee in your department who was fired last year after working one year was given one month's severance. This could constitute sex discrimination if you are not paid four months' severance pay (the same pro rata rate) unless the company's policy is to pay terminated employees a minimum of four weeks' severance no matter how long they worked for the company. Remember this and act accordingly.
The golden rule is to never quit. Refuse an employer's offer to resign whenever possible. This is because if you resign you may be waiving a claim to unemployment and other severance benefits, including earned commissions. This is a trap many employees fall into.
Important Negotiating Points
The following strategies can help you obtain a better severance package, whatever your situation, often without a lawyer's assistance.
1.Wages (also referred to as salary continuation)
a.Try to stay on the payroll as long as possible.
b.Negotiate for the employer to continue to provide medical, dental, and hospitalization coverage (paid for by the employer) while you are receiving severance wages.
c.Avoid arrangements where you are offered severance for a specified period of time (e.g., six months) which automatically ceases when you obtain a new job. Rather, make the offer noncontingent on new employment. If that is not possible, arrange that differential severance will be paid in a lump sum if you obtain a new job prior to the expiration of the severance period. (For example, request that three months' worth of severance will be paid in a lump sum if a new job is obtained any time before the six months' of salary continuation expires.)
d.If severance pay is to be paid in a lump sum, consider asking for it immediately, not in installments over time.
e.Consider the tax ramifications of postponing a lump sum payout until the following year, when your tax base will be lower if you do not find employment quickly.
f.Recognize that if you receive salary continuation rather than a lump sum payment you may be ineligible for unemployment benefits until the salary continuation payments cease in some states; thus, always contact your local Department of Labor for guidance and consider the benefits of a lump sum payment rather than extended salary continuation (unless you are not adversely affected under your state's unemployment compensation policies).
g.Avoid accepting the employer's first offer; always negotiate, negotiate, negotiate.
h.Attempt to receive at least four weeks' severance for every year of employment.
2.Other Compensation
a.If you have relocated recently at the request of the employer, try to obtain additional relocation allowances.
b.Discuss accrued vacation pay, overtime, and unused sick pay. Be sure you are paid for these items.
c.If you were fired without notice, ask for two additional weeks of salary in lieu of the employer's lack of notice.
d.If commissions are due or about to become due, insist that you be paid immediately; do not waive these expected benefits.
3. Bonus
a.Understand how your bonus is computed.
b.If you were entitled to receive a bonus at the end of the year, ask for it now.
c.If the employer refuses to pay, argue that the firing deprived you of the right to receive the bonus; or
d.Insist that your bonus be prorated according to the amount of time you worked during the year if the above arrangement is rejected. For example, if you are fired on November 30, ask to receive 11/12 of your expected bonus. Do not accept the employer's argument that you must be on the payroll the day the bonus is paid in order to receive it; some employers fire workers to deprive them of these expected benefits.
4.Pension and Profit-Sharing Benefits
a.Ask for details regarding the nature of your benefits. You are entitled to an accurate, written description of all benefits under federal law.
b.Be aware of all plans, funds, and programs that may have been established on your behalf.
c.If you are fired just before the vesting of a pension or stock options (e.g., two months before the vesting date), argue that the timing is suspect and that public policy and fairness requires the employer to grant your pension or stock options. If the employer refuses, consult an experienced labor lawyer immediately.
5.Other Benefits
a.Request continued use of an office, secretary, telephone, or mail facilities to assist you in your job search if appropriate.
b.Consider requesting a loan to tide you over while looking for a new job.
c.Consider requesting continued use of your company car or ask to buy the car or take over the lease at a reduced rate, if appropriate.
d.Request that the employer pay for outplacement guidance, career counseling and resume preparation services, including typing and incidental expenses. Some employees negotiate to receive a smaller cash settlement in lieu of the cost of outplacement services where applicable.
6.Medical, Dental, and Hospitalization Coverage
a.Does coverage stop the day you are fired or is there a grace period? Ask for a copy of the applicable policy.
b.Can you extend coverage beyond the grace period?
c.Be sure your benefits are explained to you if you do not understand them.
d.Can you assume the policy at a reduced personal cost? This is sometimes referred to as a conversion policy.
e.If you are married and your spouse is working, you may be covered under your spouse's policy. If so, do you want to continue paying for your own policy?
f.Be sure the employer has notified you regarding your rights under COBRA. If you receive no notification within 30 days of your discharge, contact the employer immediately.
7.Life Insurance
a.Can you convert the policy to your benefit at your own cost? Don't forget to inquire about this.
b.Is there any equity in the employer's life insurance plan that accrues to you on termination? Inquire about this and ask for a copy of all policies presently in effect.
8.Your Cover Story
a.Clarify how the news of your departure will be announced. Discuss and agree with management the story to be told to outsiders.
b.Consider whether you want it to be known that you resigned for personal reasons or that you were terminated due to a "business reorganization." These are neutral explanations that are preferable to firings for misconduct or poor performance.
c.Request that a copy of a favorable letter of recommendation be given to you before you leave the company if possible.
d.Request that key members of the company be notified of your departure in writing. If possible, approve the contents of such a memo before distribution. The news of a firing spreads rapidly and written memos can dispel false rumors about your termination.
9.Golden Parachutes
a.Determine if you are entitled to receive additional benefits under a severance contract or golden parachute. Generally, golden parachutes are arrangements between an executive and a corporation that are contingent on a change in control of the corporation.
b.Speak to an experienced employment lawyer immediately to protect your rights if the employer refuses to provide all the benefits specified in your contract or there is a merger and a successor company advises it will not honor prior commitments of severance and other expected benefits.
Final Points
After you have negotiated the severance package and are satisfied that you have adequately covered all your options and benefits, you must decide whether to accept the company's final offer or retain a lawyer in the attempt to obtain additional compensation.
Before retaining a lawyer, be sure you feel comfortable with him or her and that the lawyer will render competent services on your behalf. This can be accomplished by following many of the strategies contained in Chapter Ten. A qualified lawyer can coach you, advise what payouts are standard in your industry, and help draft your severance agreement. If you receive a comprehensive document like the one beginning on page 230, consider retaining a lawyer to review the document for errors or inconsistencies. If you do not receive a written offer after terms are discussed, it is advisable to send a letter to the employer to confirm the deal. The letter on page 214 illustrates this.
Tip:Whomever you retain, it is important that the lawyer commence work on your matter immediately. Time is crucial in all termination cases; action must be taken quickly to demonstrate the seriousness of your resolve. The longer the lawyer waits before contacting the employer, the weaker the case often becomes and the chances of receiving more compensation and benefits in negotiations may diminish. In fact, the author prefers to contact the employer no more than several weeks after a female client has been fired. Sometimes, the author will not represent a client in a termination settlement when she has been fired many months before. (Note: If negotiating a severance package is not the issue, such as seeking to collect commissions or breach of contract damages that may be owed, the time frame to contact an employer or principal on behalf of client is not as important.)
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