Author: Daniel A. Lublin
Terminations are psychologically and financially difficult. Therefore, I offer the following four tips to the recently departed. If nothing else, following my advice ought to ensure an appropriate severance package, if not more,
(1) Don’t submit to pressure or impulse: Recently dismissed employees have a tendency to surrender to impulse and sign an improvident termination or severance package only to realize afterwards that more money and protection was available had they just asked. Like any commodity, a termination package is usually negotiable.
Your employer should advise you to review the terms of your termination package with a lawyer prior to executing a release. Do not sign or agree to anything until you have received proper legal advice.
In my experience, I usually find that companies are inclined to negotiate better terms of severance once legal counsel is evident. Leverage is found in the threat of litigation and the associated costs of defending a claim. Therefore, a lawyer’s letter, formulated appropriately, can encourage negotiations. If you have obtained proper advice and your former employer is both knowledgeable and reasonable, there is a stronger chance of resolving your situation at an early stage and with a more favourable outcome.
Time is not always of the essence – I’ve seen many recently dismissed employees jump at the first offer of severance they are given simply because they either cannot afford to wait or are afraid they will receive nothing else unless they accept the deal immediately. Timing will be an issue if you have another job lined up, but generally your right to compensation is not relinquished simply because you have attempted to negotiate better terms.
(2) Consult with an employment law expert: The guidance of experienced counsel is imperative to ensure that your case is properly advanced, persuasively argued, and that critical mistakes are avoided.
You should avoid legal practitioners who merely dabble in employment law since they may not keep abreast of the most recent developments or have the necessary practical skills to meet your objectives.
(3) Mitigate before you litigate: Dismissed employees have an obligation to search for an alternative, comparable job. You cannot stay home, allow your losses to accumulate, and then claim damages. To prove you have sought re-employment, you should diarize all your job search efforts. Also, keep any receipts for expenses you incur in looking for a job as these can be claimed in a lawsuit and will also help demonstrate your job search efforts.
(4) Litigate as a last resort: Fortitude is the paradigm of success in negotiations or a lawsuit. The expenses associated with litigation act as a deterrent for most plaintiffs. The cost, along with the relative uncertainty of the outcome, encourage many employees to accept a reduction in damages at the outset rather than watching their award grow over a period of time. Dismissed employees must understand that companies are cognizant of the same considerations and would rather pay additional compensation up front than watch their legal costs and time expenses rise too. Litigation should always be used only as a last resort.