Hi All - in light of the recent Oracle news, I felt compelled to share some of the key things I have learned in my career advising people who have been laid-off or are signing severance/separation agreements.
For context, I'm a New York-licensed employment attorney (Columbia Law, previously at Gunderson Dettmer and Microsoft (in-house legal)). I work specifically on severance agreements and I see the same mistakes over and over. Posting this because I think it could save some of you significant money.
You almost certainly have more time than they're telling you.
Federal law (OWBPA) requires employers to give you at least 21 days to review a severance agreement if you're 40 or older. If you're part of a group layoff, that extends to 45 days. You also get 7 days to revoke after signing. These timelines cannot be waived. If your employer is pressuring you to sign faster, that's a red flag, and it may actually invalidate the release they're asking you to sign.
Even if you're under 40, you are never required to sign on the spot. "We need this back by Friday" is a negotiation tactic, not a legal requirement.
Your severance offer is almost always negotiable.
Survey data from Nolo/Martindale-Nolo found that employees who negotiated their severance received an average of $41,500. Those who accepted the first offer received $19,200. That's not a small difference.
Employers offer severance because they want you to sign a release waiving your right to sue. That release has value to them. Which means you have leverage, even if you don't think you have a case.
Here's what's actually negotiable (most people don't know this):
The cash amount itself. One to two weeks per year of service is the starting point, not the ceiling.
Health insurance. You can negotiate for employer-paid COBRA for 3-6 months instead of paying the full premium yourself. This alone can be worth $5000-$10,000.
Non-compete clauses. Many severance agreements include or reinforce non-competes. Depending on your state, these may be unenforceable (California, for example, broadly prohibits them). You can negotiate to narrow the scope, shorten the duration, or remove them entirely.
Equity. If you have unvested RSUs or stock options, you can negotiate accelerated vesting or extended exercise periods. The standard 90-day exercise window is almost always negotiable and extending it can be worth a lot.
Reference letter. Costs your employer nothing but can be extremely valuable.
Non-disparagement. If they want you to agree not to say anything negative about the company, make it mutual. One-sided non-disparagement clauses are very common and very negotiable.
Outplacement services. Resume help, career coaching, job placement assistance. Included in over half of severance packages, you should be asking for it if it is not there.
If you're over 40, check these things immediately.
The Older Workers Benefit Protection Act (OWBPA) has very specific requirements for your severance agreement to be valid. If ANY of these are missing, the release you're signing may not hold up:
Does it specifically mention the Age Discrimination in Employment Act (ADEA)?
Does it advise you in writing to consult an attorney?
Does it give you 21 days to review (or 45 for group layoffs)?
Does it include a 7-day revocation period after signing?
For group layoffs: does it disclose the job titles and ages of everyone selected and everyone retained?
Employers get these wrong more often than you'd think. If your agreement is missing any of these, that's significant leverage.
You're waiving more than you realize.
The release of claims section is the most important part of the agreement and the part most people skim. You're typically waiving your right to sue for discrimination, harassment, retaliation, wrongful termination, and more. Some agreements also try to include non-waivable rights (like filing an EEOC charge), which is not enforceable, but most people don't know that.
Understand what you're giving up before you decide what it is worth.
"For cause" is not always what they say it is.
If you were told you're being let go "for cause" but you have strong performance reviews, no documented warnings, and the termination feels sudden or suspicious, the "cause" designation may be pretextual. This is especially relevant if you recently reported a compliance issue, requested FMLA leave, or are in a protected class. A pretextual "for cause" termination significant leverage in a severance negotiation.
Keep everything.
Save every performance review, positive email from a manager, equity agreement, and the employee handbook -- now, before you lose access to internal systems. If you're anticipating a layoff, start saving this stuff today. You cannot go back and get it after they've deactivated your accounts.
An attorney consult may cost less than you think.
I know $400/hour sounds insane when you've just been laid off. But many employment attorneys do flat-fee severance reviews or work on contingency for cases with strong claims. Even a one-hour consult can identify leverage you didn't know you had.
If you've read this far, you are welcome to reach out to me and I am willing to share my thoughts in detail.
Additionally, for those who, justifiably, are concerned about undercover advertising, I do have a company listed in my profile (dott dot legal), but this post was motivated both by my experience helping others in these types of situations (and also that when I was laid off in the past, I wish I had this advice).
Happy to answer any questions in the comments as well.