Question: I was laid off during a mass layoff 4 weeks after returning from maternity leave. I work for a large newspaper where I had a high-profile and prestigious writing position in which I was generally considered to be a productive employee. The decision to terminate me doesn’t make sense to me because it doesn’t jibe with the measures they used, like productivity, Web experience, etc. I was laid off on October 27 and am receiving full salary and benefits through December 26, and then a lump sum of 2 more weeks if I sign a waiver saying I won’t sue.

I have two questions: (a) Is it too late to negotiate a better severance? (b) Should I talk to HR, or the person who laid me off?

A Blog Reader
Los Angeles, CA

Answer: I am glad you wrote in, because your questions are both important and common. Your facts and circumstances allow me to explain a lot of important things to you, and to many others, at the same time. Let’s start.

“W.A.R.N.” 60-day Notice

From what you’ve told me, you are presently on a “W.A.R.N.” Notice Period. “W.A.R.N.” stands for the Workers Adjustment and Retraining Notification Act, a federal law that requires that employees in a large layoff be given 60 days notice before layoff. So, technically, you are still an employee until December 26, with full pay and full benefits. You really haven’t been “given” anything yet, and you haven’t “given up” anything, either.

Severance Offered

You are being offered severance of two weeks pay – less taxes – in exchange for signing a release that makes you give up all of your rights, and might even obligate you in other ways. Some severance agreements have limitations on who you can work for next (called a Non-Compete Agreement). A severance agreement, and its release, are legal documents, so you really should have an attorney look it over for you. Two weeks pay, less taxes, is usually not a lot of money to give up all of your rights.

Negotiate Now? Why Not?

Since you didn’t yet sign the Severance Agreement or its Release, you are entirely free to ask any questions you want, and to ask for more severance if you feel you were chosen due to your recent maternity, or for some other improper reason. One thing is for sure: when employers lay some people off, and keep others on board, they don’t pick names out of a hat. There is always a decision-maker, who makes a decision, based on certain factors. Sometimes those factors are proper, like poor productivity. Sometimes those factors are not proper, and not legal, like recent motherhood. It is not only still possible for you to raise the question “Why me?”, but I think you owe it to yourself, and to your baby, to do just that.

“Why me?” is the most important question to ask, and the one that your employer does not want to answer. They’ll no doubt say, “It is part of a mass layoff.” Your response is “That doesn’t answer my question: “Why was I, among others, chosen for layoff?”

Perhaps it was Your New Child

If, as you say, your “factors” suggest that you shouldn’t have been laid off, maybe your recent maternity leave made your employers think “Oh, well, she’ll probably have her new child on her mind all of the time,” or “She’ll probably be having another soon, anyway.” In fact, the decision to lay you off might have been made while you were out on maternity leave, and they might have said to themselves, “She’ll probably prefer to stay home, anyway.”

If those motivations were part of the decision-making in your case, that is illegal, and you would have a very valid legal claim for reinstatement to your position, or a negotiated settlement of your claim.

How and Who to Ask

The question “Why me?” should be addressed (a) in writing (email is a great way), and (b) NOT TO HR, but to the Decision-Maker, or his/her superior. Before writing though, it may help to ask around if other women at work have either experienced the same thing, or have even brought claims to court; one of the best kinds of evidence is “pattern of conduct.”

Please consider reading our Blog library articles on severance negotiation; they’re the best there is on the subject. You can do so by [clicking here].

In sum, it’s not too late, and you should (almost) never go to HR with such a question or claim, but instead to a “decision-maker.” HR’s job is to say, in effect, “Sorry, there is nothing I can do.” A “decision-maker,” though, can make a decision, and tell HR what to do.

Bear this in mind: before every mass layoff, HR prepares a budget, and always sets aside a “reserve” in that budget for people who come forward in the way I’m suggesting you do. Kids are the best thing in life, but they are EXPENSIVE. When you go forward seeking more severance, think of your baby, make her/him your driving force, your powerful purpose, and your determination is likely to make you successful. Having done this kind of work for 25+ years, I know that to be true.

Hope that helps; really do. Congratulations on your new baby. Now go back there and make her your motivation. And thanks for writing in. Hope you’ll keep reading our blog, write in again, and subscribe; it’s free.

Best, Al Sklover

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