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Alan L. Sklover

If I negotiate, will my severance be taken off the table?

Published on February 28th, 2013 by Alan L Sklover Question: If you are given a severance agreement, are in a protected class, and decide you want to attempt to negotiate the agreement, can the 21 days to sign the severance agreement be extended, or will the former employer take the severance offer off the table?

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Benicia, California Answer: Dear Dan, Sorry to seem so wishy-washy, but the answers to your questions are Yes, No, Maybe, and It Depends. Hey, I am a lawyer; did you really expect a quick, easy answer? Truth be told, the answers you seek require a bit of explaining, so here we go:

Dan

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1. A severance agreement is a kind of contract, and what most attorneys call contract law is basically the same everywhere. Though this might be obvious to you, it is not known by many people. A severance agreement is a contract in which (a) the employer offers the employee certain things usually (a) some monies, (b) some
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benefits, and sometimes (c) some services (like outplacement or career counseling) in the employer, (e) not to take property of the employer, and (f) not to spread around the employers secrets. Of course, there are many variations, but that is the basic deal.

exchange for the employees promises not to do certain things, such as (d) not to sue

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2. The basic law of contract offers is simple: if an offer is made and it is said that it will be available for, say, 21 days, then it must stay on the table for that long, unless it is rejected before the 21 days. For this reason, your severance offer will

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almost undoubtedly remain on the table and thus available to you to accept, for the full 21-day period . . . unless, that is, you say either No thank you I reject it, or Here is a my counter-offer, which is a kind of rejection. If you reject it, or be. counteroffer it, then your severance offer can be taken off the table, and may 3. However, it is very unusual for a severance offer to be taken off the table for

three important reasons. First, if your employer really wants to take the severance

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offer off the table, chances are they never would haveput it on the table in the you really have nothing to lose by hiring a lawyer (what most employers call a

first place. Second, if your employer takes your severance offer off the table, then gorilla) to threaten or sue them, which is exactly what the employer wants to avoid in the first place. Third, if your employer takes your severance offer off the table, are trying to avoid: lawsuits, telling secrets, taking property, etc. Most employers then you have nothing to lose, and everything to gain, by doing the exact things they understand this, and dont take severance offers off the table for a very long time. I have negotiated severance agreements for over a year without them being taken off the table.

As you may know, my book on severance negotiating, Fired, Downsized, or Laid Off, is generally considered the best book there is on the subject. If you would like to Alternatively, you may obtain an e-book version of it by [clicking here.] purchase a copy of it by instant download from your desktop printer, just [click here.]

4. In my 30+ years of severance negotiating, I think I have seen severance offers

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taken off the table for failure to meet a deadline perhaps just twice, maybe three

times. As I suggested above, it is exceedingly rare for an employer to say, in effect, it cannot be denied that it could happen to you, and it may be wise to take prudent steps to prevent that. 5. The safest thing to do in your situation is, first, to request by email an

You missed the deadline; therefore the severance offer is off the table. That said,

extension of time to consider and discuss a resolution. In other words, ask your

Human Resources representative for a written commitment to extend the time to

accept your severance agreement or reach some other negotiated resolution from 21 days, to, for example, 35 days. The best way to do this is by email, as soon as possible, and noting a good reason for the extra time being needed, such as difficulty

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finding and meeting with an attorney, to review it. The only commitment for more time you can rely on is one in writing, or email; do not rely on spoken commitments.

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If you would like to obtain a Model Memo entitled Request for More Time to Review and/or Sign a Severance Proposal, that you can modify to put your own facts and circumstances into, and then can use to make such a request, just [click here.]Delivered by Email Instantly!

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6. The next step to begin to take is your actual negotiation, that is prepare a

request for additional severance, and mention (a) your protected class status, and (b) at the end, insert a plea for no retaliation for raising these issues. I hope you Negotiating so you can become familiar if not expert on how to negotiate severance successfully. have spent some time reviewing our blogsites Resource Center section on Severance

It is best done by means of (a) a letter sent by email, (b) not addressed to Human

Resources, but rather to a person of authority in the employer, (c) that gives a good presents a proposed severance that you think would make the giving up of your claims a deal you could accept, and (e) that makes a clear request, in the last sentence or two, that you not be retaliated against. That is how it is best done, really the best.

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reason to believe that you have not been treated legally or according to policy, (d) that

anywhere, anytime, in any company. I dont guarantee results; the method, though, is One of the very most popular of our Model Letters is our Model Memo Requesting Additional Severance. It has been used by hundreds of people with success. To here.] obtain your copy, which will show you What to Say, and How to Say It, just [click 7. Why does this work so well especially if you are in a protected class? Because to then take away your severance offer could be perceived as an illegal retaliation, which is a significant violation of law. The law says that it is illegal for employers to discriminate against certain people on the basis of age, gender, race, etc., and

especially those who are in protected classes. (Protected classes are those groups whose members have been historically denied equal employment opportunity.) to illegal retaliation. Illegal retaliation claims are often easier to prove than The law also says that it is illegal to retaliate against an employee who has objected discrimination claims, much more readily accepted by juries, and in fact won almost all the time by former employees making the retaliation claims. It is for this reason that employers are fearful of retaliation claims.

If, in your response to your severance offer, you write back that you believe you have been fired, downsized or laid off because you are a member of a protected class, then, if the severance offer is later pulled off the table, you could argue in Court, illegal discrimination.

quite convincingly, that their doing so was in retaliation for your raising your claim of Its for this reason that a person in a protected class who wants to negotiate

severance is almost always given the extension of time they request, and additional extensions, too, and rarely is any severance offer in such circumstances ever taken off the table.

23. Retaliation and Whistleblowing 24. Non-Competes & Other Restrictions 25. Trade Secrets and Confidentiality New!! 26. Defamation and Disparagement 27. Relocation and Expatriation 28. Conflicts of Interest 29. Misconduct and Bad Behavior New!! 5. Workplace Disputes 30. Privacy and Publicity New!! 31. Reputation Repair 32. Bullying, Hostility & Violence New!! 33. Resolving Disputes 34. Arbitration and Mediation 35. Dealing with Attorneys 36. Collecting Money You Are Owed New!! 6. Leaving and Losing Your Job 37. Resigning from Your Job 38. Involuntary Resignation 39. Fired, Downsized or Laid Off 40. Severance Negotiating

We also offer our Ultimate Severance Package of Model Memos, Letters and our 94here.]

Point Checklist for Severance, for your use and advantage. Interested? If so, just [click Dan, answering your question has taken many words, but when it comes to helping enough. Most of all, I hope this has been helpful.

my blog visitors, and repairing the world, Id rather be extra careful than not careful My Best to You, P.S.: Al Sklover is available for confidential telephone consultations of 30-minutes, 60-minutes, or two-hours. For more info [click here.] Repairing the World -

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