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Hey, it's Mark and welcome back, another edition. Today's topic is you're firing me. Question mark. Tips for navigating separation and severance negotiations. The good news, you don't have a chip implanted in your brain, so you can remember being fired. The bad news, you don't have a chip implanted in your brain, so you

Welcome And Topic Reveal

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can remember being fired. Being fired or terminated or laid off is extremely stressful. It is also usually comes with what looks like fairly standard paperwork. Separation or severance, they're usually the same thing from a legal standpoint. Here are some tips to navigate and to negotiate your termination offer. First, determine if you are being offered severance pursuant to a company severance plan, known as an ERISA plan or the Employees Retirement Income Security Act, which Congress created in nice words. These plans are publicly available and subject to ERISA laws.

ERISA Plans And Your Rights

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I myself is an ERISA attorney. In short, your employer is legally obligated to comply with their own ERISA plan. So it's important to confirm if this is part of your benefits package. If you are unsure whether you have an ERISA benefits, the first step is to ask your company, HR or management, look in the HR portal, for a copy of the complete personnel file for yourself and look for the benefit. If you want to be certain this is a good time to seek legal support, spoiler alert, I know a good lawyer for you. If you do not have a company ERISA plan, but you are being offered severance, this is typically, but not always, a standalone contract offer. And here's where I'm going to take you into law school contracts class 101. Every contract starts as a question of an offer and acceptance. You are being offered something, typically the severance pay, and in exchange they are asking things of you, the terms of the severance contract, basic offer. Up to you, it's up to you whether you accept it or not.

Severance As A Contract

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This is why you always have the option to negotiate. They want something from you and for your for you to sign their severance contract, and that is why they are offering you money. This gives you leverage and power. And you've heard me talk about severance on these episodes. Without an ERISA plan or a separate pre-negotiated contract, if you're an at-will employee, as over 90% of employees in the U.S. are, the employer is not required to offer you anything when they fire you. The employer can simply terminate you and say goodbye. But the overwhelming majority of employers offer terminated employees severance. Why do they do this? They do it for a very specific reason. They want you to sign their separation agreement according to their terms, specifically get into the second confidentiality and release of claims. Here's what they look for: the payment terms, aka the consideration. It's a legal word for payment. Are they offering lump sum, weekly pay? How much? How

Payment Terms And Leverage

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long do you get paid? You can negotiate the terms of the payment and you can negotiate how much? Pushback if they are offering payment over a severance period. But it would it will stop if you get a new employment. Typically, this is to be worded as quote, payment over X months to be paid over per normal payroll practices until the employee gets rehired. You want to avoid this. This is a bad offer. Pushback. Lump sum is always ideal. You can ask for more money. Here's the biggest term. It's the release of claims. It's extremely valuable to the employer. This is what they want from you. They want your skin, your hide. By signing a release and accepting their separation payment, you are essentially creating an almost unbreakable contract that you are you agreed not to sue them for anything

Release, Confidentiality, And Power

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they did to you during your employment. It's a full release. This is the most important thing of the severage agreement to the employer. They will negotiate for this because they want this. The next term they want is a confidentiality clause. This one is also extremely valuable to the employer because it stops the PR marketing nightmare that you're going to create by your lawsuit. The employer wants the release of claims and confidentiality because of provisions that matter the most to them. This gives you power to negotiate, leverage. Next term is a non-disparagement clause. Most employer separation agreements make this one one-sided in their favor. Non-disparagement is stricter than defamation, libel, slander, which you probably have heard about. Non-disparagement means that you cannot say anything about the employer remotely negative

Non-Disparagement And Mutuality

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in any way, in anywhere, unless there is a time restriction. Or you risk penalties in the agreement, and which typically could include a clawback of the entire amount of the severance. What does this actually mean in reality? Whether it's a job interview, a conversation with a close friend, and anyone asks you about how your job went, your answer needs to be, quote, no comment or something positive. I typically say no comment. Obviously, this is not how most of us speak to our friends and work friends on a daily basis. We want to complain about work. That's normal. It's going to be awkward at times, but don't risk your severance pay over it. It's not worth it. We strongly encourage clients to push back and limit the non-disparagement clause and also make it mutual. Mutuality means that the employer can likewise agree that they will also not spread negative comments about you. This is extremely important to many people, and most employers don't agree to it. So we have to negotiate very hard to get it. After termination, we want to immediately shut down the gossip network that occurs at work. Cooperation clause is the next. These are becoming increasingly common. The clause will say something like, you agree to assist as needed. I think it's pretty crazy that every employer is including these provisions now. I push back, but we all do. If they they want to demand access to you after they fire you, then we demand that they pay you for your time

Cooperation Clauses And Limits

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and your costs, typically at your rate of your salary. And we limit to a period of time, a short period of time, like a month. Theoretically, if an employer invokes this clause, they could demand that you get on an airplane and to come assist them with some random problem they have, and you would have to literally bear your own costs and expenses and risk losing your entire severance pay if you don't do it. And not to mention the impact on your current work that you are you're working. This would be an insane outcome, but it's theoretically possible. I always push back on these provisions and successfully. Next provision is arbitration. You've heard me talk about this before. Many separation agreements include arbitration policies. As an attorney, we don't like arbitration. It sounds easier, but it isn't, and it's often actually more expensive than litigation. Here's a next term is a days to consider the agreement. You know, you've heard about 21

Arbitration And Consideration Periods

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days. That means you were terminated alone, we think. And next one is 45 days to consider the agreement. This means that two or more people were terminated at the same time. This can impact potential legal claims that might you might have. I only point this out because it's it's one of the uh quickest and easiest things I I look for. Bottom line, there's room to negotiate. Don't just sign pushback and figure out what your leverage is. You've heard me talk about that a lot. Leverage in the form of what your legal claims are. Thank you for listening and allow me to be a service. Have a great week.