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

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?

Dan
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:         

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 benefits, and sometimes (c) some services (like outplacement or career counseling) in exchange for the employee’s promises not to do certain things, such as (d) not to sue the employer, (e) not to take property of the employer, and (f) not to spread around the employer’s secrets. Of course, there are many variations, but that is the “basic deal.”   

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 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 counteroffer it, then your severance offer “can” be “taken off the table,” and may be.   

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 offer “off the table,” chances are they never would have put it “on the table” in the first place. Second, if your employer takes your severance offer “off the table,” then you really have nothing to lose by hiring a lawyer (what most employers call a “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,” then you have nothing to lose, and everything to gain, by doing the exact things they are trying to avoid: lawsuits, telling secrets, taking property, etc. Most employers understand this, and don’t 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 purchase a copy of it by instant download from your desktop printer, just [click here.] Alternatively,  you may obtain an e-book version of it by [clicking here.] 

4. In my 30+ years of severance negotiating, I think I have seen severance offers 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, “You missed the deadline; therefore the severance offer is ‘off the table.’” That said, 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 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 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.”  

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 have spent some time reviewing our blogsite’s Resource Center section on Severance Negotiating so you can become familiar – if not expert – on how to negotiate severance successfully. 

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 reason to believe that you have not been treated legally or according to policy, (d) that 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, anywhere, anytime, in any company. I don’t guarantee results; the method, though, is really the best.    

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 obtain your copy, which will show you “What to Say, and How to Say It,”™ just [click here.]  

 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.) 

The law also says that it is illegal to retaliate against an employee who has objected to illegal retaliation. Illegal retaliation claims are often easier to prove than 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, quite convincingly, that their doing so was in retaliation for your raising your claim of illegal discrimination. 

It’s 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.”  

Dan, answering your question has taken many words, but when it comes to helping my blog visitors, and “repairing the world,” I’d rather be extra careful than not careful enough. Most of all, I hope this has been helpful.

Deadlines are important; don’t let your severance deadline expire. To help you ask for more time, we offer our Model Request for More Time to Review/Sign Your Severance Agreement. It shows you “What to Say and How to Say It.”™ To obtain a copy, just [click here.] Delivered by Email – Instantly!

My Best,
Al Sklover

P.S.: You might be interested in our Master 94-Point Severance Negotiation Checklist, to give you the peace of mind and freedom from worry that you forgot to raise or entertain certain points of discussion and negotiation. To obtain copy, just [click here.] Delivered by Email – Instantly!

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