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[Music] hi i'm thomas biggle founder of this big a law firm and we get a lot of questions about severance or separation agreements the documents that you get when you've been fired or let go from a job and I'm excited to offer this educational piece to you because it's very confusing you've been let go from a job you get this document that didn't be anywhere from three to ten pages of all this legalese and you're not sure what to do with it so we're gonna take everything that we've learned over the past many years and seeing hundreds of these documents and share them with you and walk through what these documents mean what some of the common pieces of them are and how you should think about them and how you might want to try to negotiate them or when you might want to seek legal advice about the document itself we had originally planned to offer this educational video about severance agreements and how to read severance agreement as a paid service because we're packing so much value that we've learned over the years into this but given what's gone on with the coronavirus and the number of people that are going to be receiving unfortunately receiving severance agreement and wanting to know what to do with them perhaps with no opportunity or ability to pay for attorneys fees or even for an educational product that's when we decided to set up this you know to set this up with all these lights and all these cameras and offer it for free as a service to people who are really in need of this information as a preliminary matter I want to you know I've got to have the legal fine print here right because I am a lawyer this is not intended as legal advice to you in order for it to be legal advice I would have to know your particular situation so this is intended only as an educational this is intended only as an educational product for you for education for you so if you want legal advice as to your particular situation then you need to go see a lawyer so the way I'm going to do this is I'm going to talk to you give you an overview first of what's separation or severance agreements are then we're gonna dive in to a sample separation agreement and then I'll follow up with some other two factors that you might want to consider with your own severance or separation agreement so let's start with what a severance or separation agreement is those terms are used interchangeably but it really doesn't matter what you call it a severance agreement or a separation agreement is essentially a contract between you and your former employer in which you in broad strokes you agree to release any right that you have to sue your former employer and the employer gives you something it's often money it can be a reference it be any number of things they give you something in exchange for the in large part agreeing not to sue the company there are some other things in these agreements that we going through but that's essentially what this is it's a contract between you and your employer now one of the key things that want to keep questions you have that you when you get one of these documents is how long do I have to consider this we get a lot of calls at the firm where people are panicked and they you know they want to have time to review this and they're concerned about how much time that they have it depends a good lawyer Lee answer the document itself and they say you know if it'll have a cover page or a letter that goes with it might set forth a time frame it might say you know the the company where we would like a response to you know response within two weeks for instance now you if you were over 40 years old you are 40 or older you are governed by you were covered by something called the older worker benefits Protection Act OWP p a and essentially it has a number of provisions but essentially it says that by law you have to have 21 days to consider the agreement and then you have to have even after you sign it you have seven days to rescind it if the agreement is asking you to waive your rights to sue for age discrimination and almost all of them do so know that your if you're over 40 that you have those rights if your employer knows what it's doing and they don't always then they'll know that and they'll give you time to consider it even absent that if you're under 40 most companies will give you time to consider the agreement not necessarily out of the goodness of its heart other than maybe part of it but rather because they don't want you later to have an argument that you were coerced into signing this so most employers will give you some time to consider it now you will occasionally get it being a situation where your employer through HR or whoever's having the meeting with you will slide this across the table and they'll want you to sign it right away that's rare if that happens my advice is always that that you should take your time to consider it you know you should say to whomever is in the room I want to take time to consider this I think you can understand that I'm under some stress right now you know kind of I'd like to take this home and think about it and most times they will allow that now technically if you're under 40 they don't have to give you any particular amount of time so it is legal for an employer to say you know this this agreement is good only until you walk out that door that's very rare but that that is that is legal but I would you know I always recommend that people think about it and again most employers will give you that time okay now what I'm going to do is I want to turn to an actual sample severance agreement and and you'll note that on this one looking at it here this is a generic agreement that we drew up for the purposes of use in this in this educational this educational product this does not intended to refer to anybody in particular as the say in movies you know any any correlation between this and actual events is unintended this doesn't refer to any particular person or company this is just a sample agreement so let's get started here and you'll see it's titled here agreement and mutual general release again the title doesn't much matter you will see on this one you don't see on this one but you will see on some you know kind of a long whereas provision whereas the company doesn't admit to liability whereas parties enter this agreement in order to resolve this matter you know you should certainly read those and and understand them they don't really have much of a legal effect it's not really a key part of the agreement or one that you really need to worry about here you'll note that it's just one paragraph where it says you know in consideration of severance and termination benefits described below another good and valuable consideration and consideration is the legal term in order to have a binding contract consideration basically means I give you something of value and exchange for you know something else and here they are giving you money or something else of value in exchange for your agreeing not to sue the company among other matters the sufficiency of which is hereby acknowledged by the parties the parties hereby agree as follows again that's a bunch of legalese but it's basically like hey we're agree and we're enter and entering into a contract here we got the paragraph one we've got the actual termination date paragraph two and again this is not a severance agreement these can be anywhere in the document this is just a sample agreement so it's not that every sample agreement a severance agreement is going to follow this outline here but the second paragraph here is the company is agreeing to pay your salary and to a year mr. Smith will receive his normal and customary paycheck dated April 23rd 2020 basically you're getting your same w2 paycheck you know through the you know for work that you have already performed in paragraph B here you'll note that this is agreeing the company is agreeing to pay you pay mr. Smith for time you know that he's not going to be at work as if you were at work so you were firing you today that we're going to pay you the next two weeks as if you as if you were at work it's just a form of severance pay there's no right or wrong way to do this here the company just saying we're gonna pay you through regular payroll you know another way that companies can do it it's just buy a lump sum they can pay you right upfront rather than paying you through payroll here they're just agreeing to pay you for a certain number of days even though you are not working these provisions are not uncommon sometimes particularly for higher level employees we'll see companies do this where they want you on the payroll they want to have access to you so if they need help with you know we're finding where documents are doing training and anything that the company may need you know they don't care that you're not coming into work but you're still on payroll they reserve the right to call you to get help with whatever the company may need finding or with whatever transition that the company may need so sometimes you will see that you know your last day of work is this day but we're gonna pay you through or pay you through a date in the future you'll see in paragraph C and D here under two where they talk about health care benefits and this is something to pay attention to obviously it's a big provision a big need for a lot of a lot of people they get their health insurance through work here there's a notification that that after a certain date they are no longer gonna pay for your health insurance but you have a right under Cobra you have a right under Cobra almost bolded here to receive payment we receive your health insurance benefits for a certain number of months that's required by law again the company's not paying your portion of the premium any more so sometimes it can be very expensive but you have a right by law to COBRA continuation coverage note that this is also an area that you can negotiate it's not just a matter of you know trying to get more in terms of lump sum payment or how long the company's gonna pay you although that's obviously important but you can also negotiate how long the benefits will continue one question we get a lot is what is what's what's required how much are they required to to pay me and that answer is generally unless there's like contra another contract that says otherwise there's no requirement that they pay you anything you know for some high-level executives in particular you might see an employment contract where there's a contractual you've entered it into a contract where if you're gonna be let go for something other than cause like stealing or something like that that the company agrees to pay you you know to pay you a separate very few people have that so but there's no requirement that they pay you anything as a rule of thumb and it's only a rule of thumb it's usually a week of severance for every year that you are with a company so if you're with the company for two years the rule of thumb is that you will get two weeks of severance but again that's just a rule of thumb it's not a requirement under law so if we scroll down here to paragraph E they talk about paid time off this paid time off again is not usually governed by law and whether you're you know if you've got a crude paid time off whether you get accrued paid time off is usually a matter of the company's practice so if the company has a practice paying people out it's often in the employee handbook the paid time off that they're accrued when someone leaves then you should get that as well if it's use it or lose it and there's no the company has nothing in a tan book and in it and its policy is that it does not pay paid time off a crude paid time off when someone quits or as let go then you're you are not entitled to that you'll see in subparagraph F here to F that the company agrees not to contest your application for unemployment in most states if you have been fired for something other than calls then you have a right to unemployment insurance which you apply through in this case where this is a Virginia employee a Virginia company so that you get you can apply for that through the Virginia Employment Commission companies can agree as part of a severance agreement not to contest your right to unemployment insurance otherwise the company can show up at a hearing unemployment hearing and saying that you should not get your unemployment insurance benefits because you were fired for some reason for calls and companies sometimes will do that and here under the severance agreement they are agreeing not to contest your application for insurance benefits a company property you'll on this all C time in paragraph three now you almost always see this and a severance agreement basically you've got to give back the company's stuff you know if you've got a lanyard if you've got a computer cell phones or something that can be tricky it depends on if you have a company cell phone you've obviously got to got to return that sometimes you'll have you know a personal cell phone that is also used for work and there there can be often by your employee under your employee handbook or a separate agreement that you signed with the company that you agreed to give the company access to your your cell phone in order to remove any company data off of that so that's something that you would want to be aware of often the companies have a right to that you know you don't want to play any games here you know you don't want to destroy company property you don't want to give them a reason to you know a reason to come after you for that and this is you know an often a good place and a good place to remind folks that the companies you know they're going to get your laptop they're gonna most of them will do what's called a forensic analysis of that where they will play it pay an expert to you know go through your computer and see what you've downloaded see you know any documents you may have taken with you so just know that you can't it's very real you're gonna thought that you would want to that you can hide that you know we've seen people download thousands of documents on a thumb drive and then take it with them for their own protection or otherwise our companies usually gonna be able to see that so just be aware of that that doesn't mean that you might have a right to that if it's your personal information you may but if you're gonna download a bunch of documents that company often will find that out it can really complicate efforts to get a severance if that's what you're trying to do on paragraph four here called no admission this is often very common where they're asking you to agree that that no laws were violated here so basically under paragraph four you are saying if you sign this agreement that you are not signing it and saying that this is the company is admitting they're signing it because they admitted they did something wrong that's not the case here we are just not admitting liability we're doing this to resolve the situation paragraph five the general and specific releases is sort of a key paragraph and again it may not be five in yours in any severance agreement and it essentially is where you are agreeing to release all the claims that you have under almost any statute to sue the company for almost any reason and you can you know you can read through it you see all the statutes that are mentioned here and usually depending on what state you're in I mean they'll mention you know federal statutes and state statutes the key thing is to remember that by signing this agreement that you are releasing all these rights and once you sign it again unless you are signing it under the older worker you you're covered by the older workers benefits Protection Act and you sign it and you you what's called rescind or you take back your agreement to the contract in seven days unless that's a situation once you sign this you are giving up your right to sue for almost any reason and this may not be a big deal for you you know if you if you're if the company is letting you go as part of a reduction in force you don't have any reason to believe that they discriminate discriminated against you or done something illegal this may not may not be of concern to you however you know this is one area where you can't really tell whether the document is fair just by looking at what's in the write and writing here because you would you need to know if you are being compensated fairly if you're been giving enough money for giving up your rights and you need to know what your rights are so for instance if you you know if you have an email let's say you're you you complain about sexual harassment you're fired you know that's a pretty good case of retaliation and in the severance agreement they offer you two weeks of severance or two weeks you know you know two weeks your salary for giving up this claim to sue well that's not a very good deal that doesn't really compensate you for giving up this this right and that's an area where if you have questions about it it may be worth hiring a lawyer or at least getting a consult with a lawyer to see whether or not you have a strong claim against the company a couple of things to be aware of where you may have claims that you're possibly not aware of are like overtime claims equal pay out claims you know at the time of signing this you may not be aware that you know a person of the opposite sex who does the exact same job that you do is being paid 25% more or you may not be aware that the company has not really adequately paid you for all the overtime and by signing this you may be giving up those rights without even knowing that and that doesn't matter if you sign this then you're giving up those rights to bring those cases so it's just something to be aware of again if if the money looks okay to you if you don't otherwise have a problem with the company you're out you're ready to move on just understanding that you're giving up all your rights to sue under any law which may not be important to you just knowing that that is what you're signing here now understand that there are some of it's rare but I have seen severance agreements where they do not have this where the company is you know offering you a certain amount of money you know and they have other provisions in it you know we agreeing a turn company property those sorts of things but they don't have a language in here that you're giving up your right to sue well then it's perfectly it's perfectly legal for you to take that money to sign it take that money and then turn around and sue the company if you believe you have a claim against it so this is really one of the key provisions a couple of things to know you can't be forced to give up certain whistleblower protection right act so if you're aware that the company is doing something wrong or over billing the government before generally to give up those claims you can't be required to give up your right to file at the EEOC or the Equal Employment Opportunity Commission which is the federal you know the federal administrative agency that oversees laws applying particularly to discrimination also to Americans with Disabilities that claim they can't force you to give up the right to file what's called a charge with that organization they can force you to give up your right to receive any compensation so you can still bring a whistleblower you can still file your you know a charge at the EEOC but you can't get any money from it so understand that that they can't prevent they can't you can waive a bunch of Rights you can't waive those but they can force you to everywhere they can to get you to agree that you won't receive any money if you later do file under one of those laws you'll see in the bottom page for here you'll see that this is in bold that that basically you you are green you're agreeing to or at least these claims knowingly even if you're not aware of all the facts that may give rise to them so again like you may not be aware that you have an overtime claim but once you sign this you give it up even if you've given up that right to sue even if you later learn that there was they didn't properly pay you for overtime so again may not be a big concern for you if the money's right if you're ready to move on it doesn't it doesn't affect you proactively I mean by that I mean you know when you go on to work at another company you're not giving away your rights forever but you are giving it away with this employer mutual release basically you are agreeing to it saying you know you are going to give up all your rights to sue as we talked about before not only against the company but any of its subsidiaries or other companies that may own you are giving up the right to pass your rights to sue on to you can't you give this to an one of your heirs if they still hope if you drive a claim when you die if you signed this agreement yeah doesn't come up for most people but that's what some of that legalese and the legalese means when it says mutual release here it means that the company is also agreeing to pursue any claims against you often that's not a big deal you would know often in support this negotiation if the company thinks that has a claim against you that's pretty rare that the company has a you know a lawsuit that it can bring against you but it's not all the remember possibility and turn a lot of these you know you'll see what's called a mutual release hey you agreed not to sue us and we're agreeing not to sue you just understand that in most instances it's not a great value to you guys I giving by saying hey I'm giving up you know the company I'm agreeing that you don't have any rights to sue me that being said all things being equal it's better to have a mutual release than to not have one if you're negotiating one of these is it something that I'd fight for not necessarily and unless you really think that the company has some sort of claim against you that they might be able to pursue let's see number seven you will usually see something like this that if you have any ongoing claims against the company that you agree to dismiss those you know it's pretty rare that we see people coming in and they've got a an ongoing claim against the company I mean if you do if you're part of a class action and certainly if you are involved in a current lawsuit against the company then you want to have your attorney review this because by signing this you you may well be green agreeing to dismiss that non-disclosure this is a big one you've seen this a lot in the news you know and the me2 movement in particular that you are agreeing not to discuss this with anybody you know often it will say you know even with its you know if you look at this the non-disclosure number ten the confidentiality that you're agreeing not to disclose or talk about this settlement with anybody will keep that you see number ten keep the agreement and its terms confidential and will not discuss them publicly or disclose them in any manner inconsistent with the full confidentiality except to an attorney or an accountant sometimes you'll see in these agreements where it says even the attorney or accountant has to agree to be bound by these provisions they don't make them sign it just know that this is you're giving up your right to talk about what happened to you at work in in large part now of course that doesn't apply if you're obviously here subpoenaed by law enforcement or as part of another lawsuit you know say another employee brings a lawsuit and you're subpoenaed to give a deposition you can these would not cover those but you can't go to a party and talk about it you can't start a blog and talk about it you can't comment on social media and talk about it you know and date companies the truth is companies are not going to follow you around generally with a with a you know with a private detective and see if you're talking about this if you I mean I'm not recommending this but if you mentioned it too it's you know somebody about offhanded at a party unless it gets back to the company chances are it's not gonna cause your problem but if you're if you're commenting on social media I've had not our clients but I've had people comment on some things that I've published on LinkedIn about employment law rights and somebody has posted about an experience they had and I've had a company against me but come after that person and say you have to take this down so just understand that companies will enforce this this this severance agreement doesn't have this language but what you want to be careful of here or what I call a liquidated damages provision and that's where it says you'll usually have some language where parties agree that if you if you violate this that the company does that it doesn't have to prove that it's been damaged normally under a contract violation of a contract like this the company would have to prove that they were damaged so if you went and you had violated this contract by going and talking to somebody at a party the company in order to mean they could sue you and they could show ya they violated the agreement but the courts can be like okay what are the damages that were you hurt in any way company no these can often be very difficult to show because often there isn't any real damage and you'll see what's called a liquidated damages provision where the company will put in here you know parties agree if that for any violation of the agreement will involve a payment of $5,000 or return of the severance that's something to really be aware of because obviously can be very expensive to you and you want to make sure that not only you aren't talking about it but your family members aren't talking about it you're not violating these provisions one pro tip here is you want to try to make this as much as possible Mutual by that I mean you know the company agrees not to say you know something bad about about you you know they'll often will agree not to say you know maybe give a positive reference or at the very least give what's called a neutral reference a neutral reference as well there you know if somebody calls for a reference for you you're new to somebody you're interviewing with that you will agree to just give them the date they they will give just a date you work there your title and perhaps your salary that's very common it doesn't usually raise red flags but again that can be in mutual provision where you can ask for it you can say hey look the money looks good you know I'm just asking that they're this this this non-disclosure of this confidentiality or this you know looking into number eleven here this non-disparagement that it be mutual that you agree to give me a positive reference you know sometimes the company will even agree on the language or at least a neutral reference and then we're getting here to number eleven the no disparagement you know you're agreeing not to go out and badmouth the company this is a part where you can also ask that the company agree not to disparage you not to say bad things about you understand that sometimes companies will they'll say well I'm not gonna if you're dealing with other lawyers say I'm not going to agree to not say the company let's say the company has 5,000 employees they'll say well I'm not gonna agree to what's called a blanket non-disparagement on behalf the company but I will greet agree that your supervisor and that the key employees around you agree not to disparage you and that's usually pretty acceptable because the chances that you know Marge in North Dakota you don't even know is going to disparage you or say bad things about you is pretty remote so we've talked about the fact that under these three provisions a confidentiality no disparen no despair judgment and the non-disclosure that you are basically barred from talking about the events that led up to signing this agreement that doesn't mean you can't talk about your job but you can't talk about you know how much money you got you can't talk about you know what's leading up to this some in many situations particularly if it's if it you know you're not being fired you're being you know let go as a part of reduction in force you the company may not care that much you may not care that much when it tends to be more of an issue is when something significant happened to you for instance we've seen in the me2 movement if you were subject to sexual harassment this is really emotionally damaging to you and now you're signing this and you can't talk about it just something to be aware of when you're thinking about you know what the money is involved here what is uh how much how much does the company paying you for giving up your right to speak about it so just be aware of that read these carefully if it's a concern to you these are another another area where it may be worth it even if you don't hire a lawyer to represent you it's a hire a lawyer to at least look at these provisions and see if it's something you need to be concerned about non-solicitation provision here number 12 sometimes you'll see these in severance agreements it's not uncommon not at all of them but essentially this says that you agree not to you know not to try to steal company employees is what a lot of it what a lot of it means we're trying to influence them you know influence them to leave with you this is rarely a really situation where it tends to come up is if you are let's say you are going to work for another company it doesn't otherwise violate a non-compete and we'll get to that in a minute and you know somebody calls you and says hey you know I'm thinking about leaving too you know I cannot come you know should I come join you at your company you know you might run afoul of the non solicitation agreement if that happens also the company's clients it usually means that they're non solicitation you know you can't go after company clients and try to get them to come with you again something to be aware of if you know your your rolodex is really important to you I see this a lot in sales you're again ready or you're getting ready to open up a new business and you might be working with the company you know company clients the non-solicitation you know may apply to you so it's something to just be aware of for most people doesn't matter if you're not in sales if you're not planning to take people with you it's not really something that's going to affect you but if you're a high level salesperson you might want this is something you might you might want to take extra attention to look at you might want to have a lawyer or at least look over it because it can really impact your business and again these are things that can be negotiated you know the time period in this one in paragraph 12 it has a period of 12 months 12 months you can agree to a lesser period also this is true for non solicitation and and while we're talking about it non-compete this one does not have a non-compete as part of the agreement some of them will they'll have an on solicitation they'll have a non-compete agreement and the non-compete agreement will say one of two things it'll say that you agree to continue to be bound by a non-compete that you've already signed sometimes a non-compete agreement will be brand-new it'll be a provision of the severance agreement and again this is one that you just want to if it's important to you you know you're a high level salesperson you you're planning to leave to work at a company that is competing with this one your former employer well you may not want to sign it I mean the money may not be worth enough to you now we're to paragraph 2 paragraph 13 the complete agreement and this is an important provision that's almost in all severance agreements and that is essentially what this means is is that everything that you're agreed to is in this document lawyers call that within the four corners of the document the reason that could be important is you know if you're having a conversation let's say with your HR department and with your former boss on the way out the door and they agree to do something let's say they agree to give you a positive reference they you know maybe agree to severance or whatever whatever may be important to you if it's not in this document it's not part of the severance agreement and they come he's not bound by that so it's just something to be aware of because it's not uncommon for there to be representations made you know when you're at the meeting by HR by somebody else at the company and maybe they're not trying to sandbag you they're just they're being sincere and it doesn't get put in this document and then it's not enforceable so if somebody you know made an agreement to do something that's important to you and they did it orally they didn't do it in writing maybe they agreed again to give you a positive reference on you want to make sure that it's part of this agreement otherwise if it's not then they're not bound by that you can't make them do that number 14 attorneys fees this is a key one too so this one will just read since it's short the prevailing party in an action to interpret or enforce this agreement shall be entitled to reasonable attorneys fees and costs incurred what this means is that there's a fight over this document let's say let's go back to the non-disclosure provision and the company says you know what we think you were at a party and you told everybody at the party you know about the money that we paid you in the severance agreement that's a violation and we're gonna sue you because of that if they sue you and they win that means not only do you have to pay your own attorney to defend you you have to pay their attorney to bring this action which could be really expensive and we saw this some in the me2 movement where this is a significant hammer where you sign a nondisclosure agreement you decide for whatever reason later that you want to talk about it and you are risking being sued and losing and having a $100,000 bill that you have to that you have to pay I when ago she ating these I like to see that that but what both sides were what's called bearing their own attorneys fees essentially if you sue me I sue you I pay for my lawyer you pay for your lawyer the winner doesn't have to pay the other side's legal fees because the truth is and most instances the company's got a lot better deeper pockets and you do to try to pursue these things so if that's one thing you want to be careful of again if you're looking at this and you're like you know what like I don't have any reason to talk about this the money looks fine the you know I don't plan on violating this you know or the or you know are the chances are they gonna come after you are you really going to get sued probably not so you know if it's a take-it-or-leave-it situation what I you know say leave the money on the table because of this no but something to be aware of and again if it's highly contentious if you think there's a possibility that there may be a fight later over a non-disclosure then this is something that you're wanting kind of want to negotiate because remember until you sign this I mean you're not bound by any of this this is just all these these provisions only come into effect if you sign it and take whatever money they're offering you number fifteen governing law now this is sort of a tricky one it's maybe surprising for you to learn but you can agree by contract to where if there's going to be a battle here where it's going to be fought and which which law applies here you'll see sort of a funny one hypothetical but it does happen where they're saying you know there's gonna be it's going to be if there's a there's a dispute about this and there's gonna be something filed in court it's gonna be filed in a court in Virginia and that the state law of Delaware will apply and courts do this all the time you bring a lawsuit in Virginia or you're sued in Virginia and the Virginia Court applies in Delaware law sort of strange to think about but that is happens it happens it happens all the time does this matter to you I mean again only to the extent that you think there might be a fight over it it can matter and oftentimes you you know you don't you don't know don't know at the time when you sign this but you know it could matter if you sign this and you say yeah I agree that if there's a fight over this it's gonna be in Virginia yeah I agree that it's going to be in Delaware and then you move to Colorado and then let's say there's an argument we go back to the non-disclosure agreement the company says you know what we think you violated the non-disclosure agreement or let's say the company doesn't pay the money that they agreed to under this and you decide you want to bring a lawsuit well then you've agreed that this that any lawsuit that you're going to bring is going to be in Virginia that means you have to hire you're in Colorado now you have to hire a Virginia lawyer and it means that this the law of Delaware is going to apply is that good or bad for you I mean who knows I mean you it depends on what the claim is some state laws tend to be better for certain claims and others may be a breach of contract claim would be better to bring in Virginia than it would be in Delaware but you've agreed to bring it under Delaware law is this something worth fighting for again if the agreement otherwise looks good you don't expect that there's going to be any reason to fight over it this is not something I would you know negotiate it's something you could try if it's a small employer and you know a lot of times something to consider is that the employer may have gotten this agreement off the internet they may not even really care so much about these kind of provisions you might say hey let's can we all agree it's kind of we're gonna bring it in there we're just going to take that part out you might you might try to negotiate that but often it's just not worth it number 16 severability so this is another legal concept basically it means that if if a court if this later is challenged in court and the court looks at this and says you know what and I'm just pulling this out a half you know I find that number Perry are 15 is not enforceable it's not it's not a it's not a provision that is that is workable under the law what severability means is that the rest of the agreement is still good it's not a situation of where hey one paragraphs out the whole thing is out I rarely see this come into play it's not worth something you know he's not worth something to fight over this with I've never seen it be an issue but just know that that's what it means that if there's an argument later about the applicability of one of these paragraphs if the court looks at it and says well you know I find that the non-compete provision does not apply it just means the rest of it is still in for school it's not number 17 the you know you knowledge the jury you you received at number 19 counterparts the agreement may be signed and counterpart that only means if you don't have one document with those signatures on it like you know okay the employer signs on one document I sign on the other we then it's an enforceable agreement we don't have to have the document signatures on the same document it's just a matter of convenience again not something I see that's worth fighting over so that's really you know what 99% of a severance agreements are going to look some version of what we've seen here and again the really key parts for you to be aware of are the non-compete non-solicitation to know whether that is important to you also understand that that's particularly for non-compete and non solicitation if you're going to do something like you're going to go out and start another business if you're going to go work for an employer that is in the same field but doesn't compete with your with your current employer you may want to talk to Lori about this but one possibility is that you raise this with the company before you leave often see where non-compete and non-solicitation provisions really get nasty is when the company is surprised by it right you go out you start a business you're not planning to compete with your company but your company was unaware that you're going to do this and now they decide they want to come after you so sometimes it's in your best interest to be upfront with what your plans are with the company and for everybody to agree that hey this non-solicitation provision does not apply to this sometimes you can even get that written into the agreement the non-solicitation provision does not apply you going to work with you know Company B over in another state just something to consider again if it's important to you you really want to have a lawyer look at that you know if you're in high-level sales if there's going to be an issue for instance like all your LinkedIn contacts if you make an announcement on LinkedIn and you're a high level salesperson and a bunch of your contacts were also customers of net you're now former employer does that cameras non-solicitation again you're not trying to steal your customers it's just you made an announcement sometimes you can you know if you're concerned about that you can agree with your employer when you're leaving that that's not can be a violation of non-solicitation the big the big piece again which claims you are releasing and you can assume that unless they didn't know the company didn't know what they were doing with that when they drafted this that if you sign it you're agreeing to release any claims that you may have if you think you have what's called a valuable claim you know you're going to want to talk to a lawyer about that and make sure the company is adequately compensating you compensating you giving you enough money for agreeing not to sue because remember until you sign this you're not agreeing you're not bound by any of this so if the money is low and you're troubled by some of this maybe just turn it down you know I take two weeks of severance let's say and he bound by some really perhaps draconian provisions let's say an on solicitation or non-compete that really could prevent you from from working at a company that you want to work for it may not be worth it to sign this so you remember none of this applies most of this does not apply unless you sign it so really understand that you've got some leverage there so those are some of the key parts of us of a severance agreement well let me talk to you about some things that will not be in the severance agreement that you you may want to be aware of a couple of them we've already referred earlier to the older workers benefits Protection Act if you're over 40 you the company is obligated to give you 21 days to consider the agreement and then seven days to change your mind after you've after you've signed it I want to show you something if there's been a big reduction in force the company will be required to give you a notification of the ages of the people that it let go I'm showing you now what's what would be one of these notifications if that's the case if the company is is engaged in a large-scale reduction in force then as you'll note here in this letter you'll be given up to 45 days and that's by law under the older worker benefit Protection Act you'll be given 45 days to consider the agreement in seven days to change your mind after you've signed it and you'll see here that it will list the ages of the people that will let go and the categories that they that they were in so if you see that that's why it's because the company is letting go of a number of people that are covered under the older worker benefits Protection Act another one is called a Warren Act notice and this is essentially when a company is doing you can the Warren Act is a is a federal law that applies to companies that are doing the large-scale reductions in force they're closing a plant it generally applies to employers that have up more than 100 employees then they are they are they're required to give you a Warren Act notice about usually give you 60 days notice that there you're getting ready to lose your job you know if they for some reason the company can't give 60 days notice there's some intervening circumstances they can give less but that's why you might want to see you've got a letter up here this is an example of a warn act notification you can sue a company for violation for failing to comply with warn Act there a number of attorneys who do this sort of work so know if you get that letter that is why if you didn't get the 60 days notice that may be a violation and something for you to consider another thing that you should be aware of is if you are a uniformed service member you remember the military if there is you may be aware of the uniformed services employment and reemployment Rights Act of 1994 only a lawyer could name it that USERRA for short and under USERRA you should be aware that there is a specific part of that law that says that if you are giving up a right to bring a claim under USERRA and where sometimes you'll see it happen is you know employer will refuse to reemployed some somebody who's coming back after deployment or there's an allegation of discrimination based on military service if you are giving up your right under USERRA the company has to you have to specifically waive that and the company has to give you something of value above and beyond what you would normally be entitled to that can be a little mushy as we talked about earlier often you're not specifically entitled to anything but it can be a it can be a tool that you can use to negotiate for for better for better severance and and if the sometimes courts have found that severance agreements have been unenforceable if they did not specifically include language that and notified you that you were waiving your rights under USERRA now let's talk about finally whether you should negotiate one of these severance agreements one thing to be aware of is that this is as we talked about earlier this is a contract negotiation which means that when an employer makes a severance offer they give this to you in writing that offer remains open until they specifically take it back or until you reject it and buy by getting it giving a counteroffer by saying you know what I'm not going to sign this unless it includes this provision or this much more money that's a counteroffer you have technically as a matter of law rejected the first offer under law the companies under no obligation to put that former offer back on the table so it is possible it's rare but it is possible that a company offers you a severance agreement you come back with a counteroffer in any aspect and the company says you know what not only do I not agree with your counteroffer but I'm taking my other offer completely off the table again that's pretty rare companies usually want the release of claims they want the non-disparagement provisions these are valued the companies getting something of value so usually at the very worst the company will say will decline to negotiate and we'll leave that offer on the table but it's just something to be aware of particularly if you know you come from an employer that is very litigious and might be willing to play that kind of game in the vast majority cases the worst that you're going to get is they'll decline your counteroffer and we'll leave that current offer on the table but it is something to be aware of it's also true if the company agrees to leave the offer open for a certain amount of time let's say in there that say you're not covered by the older worker benefits Protection Act the company says and the cover letter you know we're gonna leave this offer over open for 14 days and you let the 14 days come and go well then that offer is technically off the table now usually in most cases the company will put that back on the table and we'll say well at least give you what they previously offered but it's not a guarantee so it's just something to be aware of when you're considering about when you're considering whether or not you want to negotiate this sort of agreement if you do want to negotiate these agreements then you can either do it on your own you know we offer a program called the legal leverage program designed just for that you can have an attorney advise you behind the scenes on how to negotiate it you can you could do it without an attorney and you just you know you back or you talk to HR and you say you know I'm willing to sign an agreement but I need another two weeks of severance you know or I need you know an extra three months of my health care coverage there you know these these agreements are not set in stone you can modify them or request whatever modifications that you want company is not obligated to entertain those but but they often will another thing to consider when you're doing this is again even if you are not let's go back to the claims that you were releasing against the company let's say that you don't have any indication or any belief that the company has violated the law and so they owe you more than what they're offering you still can negotiate these keep in mind that again the company these are valuable to the company they're not just giving you something they're getting something they're getting that release of claims because they end up it's a large company that you mean if they don't know what all their employees are doing they don't know if somebody has in relation to you violated the law they don't know if the accounting department made a mistake and didn't pay you proper overtime so one piece to think about when considering whether or not to negotiate this on your own the company is getting something of value from this even if they didn't do and he arguably didn't do anything wrong they're getting the release of claims which is really valuable even if the company is pretty sure that it didn't do something wrong it often doesn't know particularly it's a big one they don't know what all the managers were doing they don't know if accounting made a mistake and and didn't pay you overtime they would prefer not to have those claims hanging out there for years they'd like to wrapped up for so when you sign that release there you're wrapping up all those potential claims they don't know about you're giving them peace of mind they're also getting that non-disparagement non-disclosure right right you were signing a contract agreeing not to speak badly about the company um yeah I said this truth even without signing something the company could sue you for defamation for saying things that are untrue but your until you sign this you could say anything that you believed to be true you can go out and talk about what a terrible place you thought it was to how badly you believe you were mistreated and there's very little that the company can do about that if you sign one of these agreements you give up that right which is a which is a big deal for the company so just understand that when the company is sliding this across the table they are getting something of value they are getting that release of claims they're getting the non-disparagement and non-disclosure you know these are things that you are giving the company when you sign these and that's why they put the money on it so those are things that are always up to negotiation so even if you don't have a smoking gun email that proves the company violated the law that doesn't mean you can't try to negotiate negotiate it it does mean you probably will take a different tone you know you don't want to come back and say well I believe you violated the law therefore you owe me more money because you don't have a belief of that but you could say either through your attorney or on your own something to the effect of you know I provided this company I'm just pulling this out of a hat you know 10 years of good service you were offering me two weeks of severance I don't think that adequately reflects the service that I provided to the company and the release of claims and other things that I'm signing you know I'll be willing to sign it for whatever insert your value there you know ten weeks of severance I'd be happy to sign this again you don't have to have an argument that the company violated the law to negotiate it as always to get specific legal advice about your situation and the rights that you are giving up you should probably go talk to a lawyer even if you don't hire ones to negotiate this and know that in many cases that you've got some time to think about this you don't have to sign it right on the spot you don't have to sign it within 24 hours if the company's pressuring you you can ask for more time as a legal matter and this is important for most discrimination claims you have anywhere from if you're a federal government worker you have 45 days but if you're not a federal government worker you may have as many as 180 days or more before you lose your legal rights to bring a claim so it's not as if you have to rush and sign this take your time to think about it if you need to see a lawyer please take time to do that but in the mean time I hope this was helpful it gives you some peace of mind if you are facing one of these agreements you