“Continuing Cooperation Clause” in Severance Agreement: A Problem?

Question: My severance agreement states that I need to make myself available during the four-week severance period to be responsive to requests about work matters to which I may have information or first-hand knowledge. 

I am interviewing, want to move on and feel as though this is something looming threateningly over my head unnecessarily. Thank you.      

Ivan
Silver Spring, Maryland 

Answer: Dear Ivan: From my perspective, having helped thousands of employees through the severance experience, “Continuing Cooperation Clauses” like yours are rarely, if ever, a problem. Only in the very rarest of circumstances do they require any thought or attention. That said, these are my thoughts:   

1. What you have is an exceedingly common “Continuing Cooperation Clause” in your severance agreement. For the past 30+ years, I have seen perhaps five new severance agreements each week. In my estimation, perhaps 95% have had such “Continuing Cooperation Clauses” in them, and it might be even closer to 98%.  

The purpose of such a clause is to make sure that no one forgot to ask the departing employee for the details of their work, deals in progress, perhaps even the password for the office computer or the combination to the office safe. There are probably thousands of things to ask departing employees, and no one can think of everything all at once. 

That said, sometimes as noted below, matters of greater importance might require your future cooperation, as well. 

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2. It is exceedingly rare for any substantive problem to arise from a “Continuing Cooperation Clause,” other than mere annoyance. Ivan, I can only think of a few, rare instances when a substantive problem arose from a “Continuing Cooperation Clause.” I think the reason is simply that the need for such cooperation rarely arises, and thus the clauses are rarely invoked. Usually such matters are resolved with a phone call or two, but nothing more than that usually takes place. Though the words of a “Continuing Cooperation Clause” may seem threatening, there does not seem to be any threat looming over you, at least from what you have written. Might the continuing requirement bother some, and annoy others? Sure, but I don’t think it is something that should keep you up at night or worried during the day. 

3. There are , however, two exceptions: If you are involved (or quite likely to be involved) in (a) a lawsuit, or (b) a governmental investigation, related to your work or your employer. These are the two instances where I believe that a reasonable degree of concern is warranted. If a lawsuit has been commenced, or been threatened, or an investigation has been commenced or threatened, and you are named as a defendant, or a likely target or necessary witness, you might want to consult with an attorney to guide you regarding (a) signing the Continuing Cooperation Clause, (b) requesting modifications to the Continuing Cooperation Clause, or (c) providing assistance according to the terms of the Continuing Cooperation Clause.  

Such lawsuits and investigations could (i) require a significant amount of your time, (ii) make your interests conflicting with those of your former employer’s interests, (iii) affect your reputation, (iv) make it necessary to have your own legal counsel, and (v) even result in your being held legally and financially liable to others. 

If you truly believe there is a significant likelihood of your being involved in a future lawsuit or investigation, by all means consult with an experienced employment attorney as to your best courses of action.   

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4. Although not usually necessary, for some people, depending on their circumstances, there are three practical modifications we ask to be made to a “Continuing Cooperation Clause” in a severance agreement. On my own list of modifications I sometimes request in such “Continuing Cooperation Clauses,” that there are three practical items you may want to consider: First, we sometimes ask that the Continuing Cooperation be applied reasonably so as not to unreasonably interfere with your future work or business obligations. Second, we sometimes ask for reimbursement for travel, hotel, and meal expenses related to the performance of such continuing obligations. Third, at times we ask for the payment of your legal expense if the need arises for you to have independent legal counsel.  

The first two requests are frequently provided; the third request is usually not provided. 

5. Bottom line, Ivan, while you should always “look before you leap,” I don’t think this is a problematic severance provision for most people. While I applaud your attention to detail, and your wariness as to what you are signing and thus obligating yourself to, this is not one item that most people need to worry too much about. 

I hope this has been helpful to you, and that you are successful and enjoy the advantages of SkloverWorkingWisdom™ in your next employment relation. 

My Best,
Al Sklover 

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