In this episode of the Employee Survival Guide®, Mark discusses that when 2022 recession wave begins to batter your employment status, do you have a plan to bail yourself out of the mess? Specifically, are you planning on receiving severance benefits via a company sponsored severance plan or are you going to build a case against your employer challenging the reason(s) for the termination and attempt to negotiate a settlement? Mark provides important strategies to follow during your next severance negotiation.
This episode was written and produced by Mark Carey and edited by Matt Zako.
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Hey, it's Mark Carey here and welcome to the next edition of the Employee Survival Guide where I tell you what your employer does not want to know about and a lot more. Today's topic we're gonna be talking about what's in your severance package, or at least what's in your severance negotiation plan when the recession hits. Ugh, the sky is falling, the sky is falling, the recession is coming. That's a familiar bead from the media about the current or future recession. When that recession wave begins to batter your employment status, do you have a plan to bail yourself out of the mess? Specifically, are you planning on receiving severance benefits via company sponsored severance plan? Are you going to build a case against your employer challenging the reasons for the termination and attempt to negotiate a settlement? For all practical purposes, there are two ways to receive severance benefits from your employer. The first type of severance benefit is through the company sponsored severance plan. Check your HR portal to see if you have one. If that does not work, check free erisa.com That's fr e er is a.com. To see if you if your employer filed a severance plan with the US Department of Labor. You were looking for a plan entitled severance or quote layoff benefits. And the plan number will always be 509. With a plan type of four I entitled severance pay. All public and private companies that maintain severance plans must file a Form 5500 with the US Department of Labor. Once you confirm the existence of the severance plan, ask your HR department for a copy of the plan document. They have to provide it to you in response to your written request for it. If they did not provide a copy of the plan document that is a violation of ERISA, the Employee Retirement Income Security Act, which is the federal law covering severance plans. Severance benefits under our plan are the floor for severance benefits. If you investigate your own facts and determine there exists any form of discrimination or retaliation, or whistleblower or breach of contract whatever you may have, you can negotiate for more money, ie severance pay. On top of the existence severance plan benefits. The legal claims must be substantiated with a sworn affidavit. Otherwise, no employment attorney working for the company will take you seriously. You are not required to tell your employer you have an employment lawyer. I actually suggest you don't and keep the company wondering while at the same time you continue to negotiate directly with the company. You can hint you have an employment attorney in the background. But make sure you do your homework regarding your claims. And the employment attorney working for the company will be able to spot whether or not you have an employment attorney for the by the contents of your internal communications, your agency complaints file with the EEOC and state agencies. Even if you do not, even if you do have an employment attorney, you may want to keep the attorney hidden until the right time to bring this representation to the forefront of your negotiation. I have worked deals both as the client spokesperson and from behind the scenes more often from behind the scenes. The second method as hinted above, is to develop legal claims to assert against your employer, you can share your legal claims and demand for more severance with your employer or former employer for that matter. For negotiation purposes. You can also file administrative complaints with the EEOC and your State Fair Employment Practices agency. Neither of these filings is public, even though the complaints are filed with governmental agencies. Is not until you file suit in court does your name become public on the internet? The negotiation with the employer should be done via email if you are not represented by an attorney. The email communication will avoid the most lethal weapon the employer uses, which is an examination of your present state of mind or psychology. What do I mean? I advise clients not to interact directly with their supervisors, executives or human resource department personnel. Because employers are looking for hints to your level of insecurity, emotions and merits of your claims. Any Zoom meeting or telephone call will show if you are sweating the negotiation or just uneasy. Employers who discover your weakness will exploit them as a matter of routine practice and attempt to bargain like a rock. I'm not kidding. They will not give you what you want. In the end. I even recently did an entire severance negotiation via email against an employer who was owned by a billionaire. I never spoke to the company's attorneys throughout the negotiation process and they were not pleased. But that was the point. I wanted to appear that I was not I'm not approachable and unwavering in terms of my demands, while I filed a volley of administrative complaints in two different federal agencies and with state and local fair employment employment practices agencies. This process drove the employer mad and facilitated this successful outcome of the case. If you hit a wall with your severance negotiation, try this tactic in a professional yet respectful tone, appear unwavering in your email correspondence. Tell them you will file administrative complaints and lawsuits if you do not get your way. Then stay true to your word and file your initiative complaints never falter when you make threats to initiate litigation. Most employers will back away and attempt to reach a settlement these days. I will warn you that most employers who discover you do not have an attorney will not bargain fairly with you. You typically know this is happening when the employer refuses to negotiate it all. At this point, unfortunately, you have no choice but to hire an employment attorney to help you. But again, the attorney does not have to be in the forefront facing part of the negotiation with the employer. Quote, if you fail to plan you are planning to fail. And quote, Benjamin Franklin, so get a plan and go kick some ass and your severance negotiation. If you'd like more information about this topic, please contact Carey and Associates PC on the web. Have a great week. I'll talk to you soon. Thanks