Jump to Section
Need help with a Severance Agreement?
What Is a Severance Agreement?
A severance agreement is a contract between an employer and an employee detailing the compensation package an employee would get in exchange for the termination of the latter's employment. This document outlines the rights and responsibilities of both the employee and the employer in the event that an employee loses their job due to layoffs or other circumstances. It summarizes the benefits the employee could receive and explains what steps they have to follow to be eligible for those benefits.
What's Included in a Typical Severance Package?
Even without a legal necessity, many employers offer severance to reduce the chance of facing wrongful termination lawsuits. This strategy can work for a wide range of companies. However, you should always speak with a business lawyer if you’re wondering how severance packages will legally impact your company.
Many employers include the following in a typical severance package:
Item 1. Wages
Financial compensation based on wages is a prevalent type of severance pay. Employers typically offer terminated employees up to two weeks’ pay for each year of service. For example, an employee working for the company for two years could severance pay equal to four weeks of wages.
Item 2. COBRA
Employers offering group benefits to at least 20 or more employees must provide the option of Consolidated Omnibus Budget Reconciliation Act (COBRA) continuation coverage through the group insurance plan.
Item 3. Unemployment
Upon termination, employees can apply for some severance benefits. The employer might provide the employee with the proposed severance benefits or deny them. How you handle this situation depends upon your company.
Item 4. Transition Help
Employers can offer employees transition services to assist departing employees in finding new employment. These options are particularly beneficial for employees out of work for an extended period. Employers also usually write recommendation letters or serve as references for terminated employees.
Unless a severance agreement is made in advance to provide specific post-employment compensation, severance packages are typically designed at the employer’s discretion. There is no obligatory severance pay, and employers are free to offer whatever benefits they deem appropriate for a terminated employee.
See Severance Agreement Pricing by State
- District of Columbia
- New Hampshire
- New Jersey
- New Mexico
- New York
- North Carolina
- North Dakota
- Rhode Island
- South Carolina
- South Dakota
- West Virginia
Why Should I Have a Severance Agreement in Place?
The main purpose of a severance agreement is to prevent your employees from filing for a wrongful termination lawsuit against your company, but there are several reasons a company could opt to provide a severance package. Some businesses give severance packages as part of standard company procedure and describe their severance policy in the employee handbook well in advance of actually letting an employee go. Others draft severance packages to cut a deal with a specific high-level employee. Severance agreement terms are highly customizable to bring different benefits to your business.
Some of the positive results of providing a severance agreement to your employees are:
- Fostering goodwill with terminated employees
- Protecting private company details, processes and data
- Showing respect to remaining employees
Circumstances for Offering Severance
You don't have to draw up a severance agreement every time someone leaves your business. For example, when you fire someone for severe misconduct, giving them a severance agreement may be seen as inappropriate and awarding bad behavior. If you have a clear justification for letting someone go and they do not pose a risk to the company, a severance agreement may not be appropriate. However, severance agreements are more popular when the employee in question has access to sensitive company information or is terminated due to circumstances beyond their control.
Common situations for offering severance pay include:
- Company restructuring
- Eliminating a position or department
- Bad fit for a role or company culture
One example of an appropriate situation for severance pay is the termination of a top company manager. Their employer might provide a severance agreement with the condition that the manager could not work for a direct competitor for the next six months. In this case, the severance agreement helps protect company operations during a transition period. Severance agreements are also common when the employer is concerned about a discrimination or harassment lawsuit and is willing to pay benefits in exchange for an agreement not to sue.
Can Employees Reject a Severance Agreement?
Just as your company is not legally obligated to offer a severance package to employees, the employees are not required to accept a severance package from your company. If the severance package does not benefit the employee and only helps your company, they may reject it and feel insulted by being offered a low-value deal.
Components of a Severance Agreement
A severance agreement is a complex legal document that has many standard parts explaining what the employee will receive in exchange for agreeing to their employer's terms of separation. Because the severance agreement finalizes an employee's termination and can influence employee behavior after they leave, the consequences of each clause need to be carefully considered. Talk with a contract lawyer for help deciding what elements you should include in a separation agreement document for your business.
Reason for Separation
Many severance agreements start by listing the reason the employee is being fired or asked to resign. The severance agreement explains that both the employer and the employee want to reach a satisfying agreement to officially settle their differences and part ways professionally.
Image via Unsplash by Scott Graham
The agreement should explain when the employee was hired, the date of termination, and information on how long the employee has to accept or reject the severance agreement.
Severance pay is usually the most significant employee benefit of accepting a severance agreement. This can be a percentage of the employee's salary for a certain amount of time made in regular payments or a large lump sum.
Paid Time Off
Compensation for unused vacation benefits and paid time off can also be part of a severance package. Companies may allow the employee to take their paid vacation and sick days before leaving or pay out the amount they would have earned from taking those benefits while they were still eligible.
Agreeing to continue health coverage is another key benefit and can help provide stability for employees while they look for a new employer to sponsor their medical benefits. According to the Consolidated Omnibus Budget Reconciliation Act (COBRA) , employees are legally entitled to continue receiving medical benefits for up to a year and a half after their termination.
If your company gives stock options as a benefit, changing the vesting schedule so that the employee can cash out could be a valuable severance benefit.
Businesses provide outplacement assistance and career coaching to help employees find a new job after they are laid off or let go for another reason. This benefit gives employees reassurance that they will have some career stability and shows that you care about their wellness outside of their role at your company.
After explaining what the employee will receive in exchange for signing the severance agreement, the document explains the stipulations for getting those benefits. This usually starts with a general liability waiver , where the employee agrees not to make or pursue any legal claims against the company. The release of liability agreement is designed to protect:
- Other employees
- Company directors
- Affiliated companies
The general liability release usually specifies a few key instances to protect the company from litigation from:
- Wrongful termination
- Civil rights violations
- FMLA violations
Once the employee agrees to this section, they waive their former right to take legal action against the company.
Return of Company Equipment
If the employee has company property in their possession, the severance agreement can go over how and when they are expected to return it. This helps ensure a peaceful transition and ties up the loose ends of terminating an employee.
Reference Check Procedure
Just as a non-disparagement clause keeps the employee from defaming your company, a reference check clause can prevent the company from giving a negative reference to future employers. Some employers agree to give a positive reference as part of the agreement, and may even provide the employee with a reference letter for them to approve.
Any severance agreement for employees over the age of 40 must refer to the Age Discrimination in Employment Act to inform the employee of their legal rights.
Part of the severance agreement is an explanation of what the employee is allowed to disclose to others after signing. Some companies make the agreement itself confidential, meaning that the employee cannot tell anyone the terms of the severance agreement they signed. It can also include other company information such as customer data and internal processes.
Employers include a non-compete clause to ensure the employee will not enter into competition with their company using company resources. Non-compete clauses can have an expiration date and apply to a certain geographical area.
A non-disparagement clause explains that the employee cannot spread negative information about the company for a certain period of time.
Having a strong severance agreement can protect both you and your employees during a staff transition. Negotiating each clause with employees to come to a mutually beneficial agreement helps ease the tensions associated with terminating an employee and sets both parties up for future success.
Common Terms to Negotiate in a Severance Agreement
While many businesses and employees correlate severance packages with severance pay, a severance package can include various components. This element is advantageous for the former employee because it provides multiple bargaining points, and it reduces the chances of wrongful termination lawsuits for the employer since severance agreements require the employee to sign a waiver.
Here are a few standard terms to know in a severance package negotiation :
Term 1. Termination Compensation
Severance pay refers to the monetary compensation offered by a company following an employee’s termination. Standard pay is typically between six and twelve months’ pay at the employee’s previous salary.
Term 2. Paid Vacation Time
Accrued paid time off (PTO), such as sick and vacation days, is negotiable for severance when it goes unused at the time of the possible termination. Numerous employers offer a PTO policy in their employee handbooks and may be negotiable when receiving a proposed severance agreement.
Term 3. Benefits
Full-time employees can continue receiving healthcare insurance and other employer-sponsored benefits. If employees pay a monthly premium, they may negotiate with their employer to cover this cost while looking for new employment opportunities.
Term 4. Stocks
If employees have non-vested stock options with their employer, the severance package may specify when they can exercise your stock options.
Term 5. Transition Services
Certain employers provide access to outplacement resources that can assist employees in developing professional skills and locating a new job.
Term 6. Liability Waivers
Along with compensation and benefits, severance agreements may include a clause disclaiming liability for any complaints.
Term 7. Non-Disclosure
Certain severance agreements compensate employees in exchange for signing a non-disclosure agreement . Non-disclosure agreements can include anything from an employee agreeing not to share information with competitors or speaking negatively about the former employer.
Term 8. References
Severance agreements may specify whether or not the employer may use this employer as a reference. Incorporating a reference clause into the severance package can aid in the employee’s new job search.
Is an Employer Required to Provide Severance Pay?
No, an employer isn’t required to provide severance pay, and the Fair Labor and Standards Act (FLS) doesn’t require you to provide severance pay when employees leave your company. However, if the relevant employee’s contract includes a severance package, this contract provision is valid and must be paid.
Certain states demand severance pay for workers laid off when a factory closes or an employer massively reduces its workforce. Additionally, employers may be required to provide severance pay if specified in company communications. Always speak with an employment lawyer if you have questions about how severance pay applies to your specific situation.
Lastly, you can offer a severance package instead of the 60-day notification requirement under the Worker Adjustment and Retraining Notification (WARN) Act for mass layoffs and site closures. You must provide a WARN notice if you’re an organization with at least 100 full-time employees eliminating at least 50 from a single location.
Can an Employee File for Unemployment if they receive Severance Pay?
An employee could file for unemployment if they get a lump-sum severance payment. Severance pay in installments, on the other hand, may jeopardize their ability to collect those benefits, as they continue to receive a steady income stream. However, state laws vary, and in some parts of the country, severance doesn’t fall under earned wages for unemployment purposes, meaning it will not prevent them from collecting benefits.
If the employee is receiving continuation pay, they may be ineligible for unemployment. Continuation pay is compensation paid until a specified date, during which they don’t perform job duties. For instance, you can lay an employee off for one month without work and still pay them, making them ineligible for unemployment benefits until the continuation pay period expires.
Meet some of our Severance Agreement Lawyers
January 31, 2023
I'm an attorney available to help small businesses in Georgia get started with initial business set-up, required filings, tax strategies, etc. I'm also available to draft, review, and negotiate contracts. My experience areas include small business startups, information technology, technology innovation, real estate transactions, taxes, community associations, intellectual property, electrical engineering, the business of video game development, higher education, business requirements definition, technology consulting, program management, and the electric utility industry. I work part-time for a firm practicing community association law and part-time in my solo practice. I'm also an adjunct professor at Southern New Hampshire University teaching business innovation and business law. In addition, I'm part owner, legal counsel to, and a board member of a virtual reality video game development company. I am a member of the Georgia Bar Association. Please reach out if you need attorney, documentation or consulting help in any of those areas!
February 6, 2023
and I am an attorney Licensed in California and Mexico, with over 14 years of experience. I have extensive experience working as an in-house counsel in executive roles in companies such as Anheuser-Busch, Campari Group, Grupo Lala as well as Tier 1 law firms.
February 23, 2023
Ms. Ayub is an attorney licensed to practice in Texas. Before moving to the US, she has a number of years of experience in contract review, analysis and drafting. Ms. Ayub is available to help you with your legal problems, as well as filling LLC and other business entity formation documents.
February 3, 2023
I was born and raised in New York and am a dual national of the U.S. and France. I am admitted to the bar of New York where I have my base and I have also lived and worked in France and Italy for many years. My practice is virtual with most business conducted by video conference, email and phone calls. I meet clients, co-counsel and others in person at their locations as needed. I obtained my law degree from Boston University. My undergraduate studies were done at Fairfield University, the University of Florence and the American University of Paris. I served as general counsel to the French consulate in Boston from 1993 to 1999 representing the French government and French citizens living and doing business in New England. My clients have included the City of New York, the New York Stock Exchange and numerous dot coms, negotiating and drafting tech contracts and advising them on international business issues. In my asset recovery and investigation work, I have obtained multi-million-dollar judgments against defendants in fraud cases. Please visit my website: ptd-law.com
February 10, 2023
I’m a semi-retired, long-time US attorney with substantial experience in business and corporate law. I counsel startups and small businesses, help them set up corporations or LLCs across the country and draft a variety of contracts and corporate documents.
February 11, 2023
Lindsey has always been deeply invested in the power of knowledge; she was born and raised in Columbus, Ohio before making her way to Miami University for a dual Bachelor's degree. Afterward, Lindsey completed a Juris Doctor at Stetson University with an International Law concentration before earning a Health & Hospital law Certificate from Seton Hall School of Law. After graduating law school, Lindsey began her career as an associate at a Florida-based insurance litigation firm. She eventually transitioned to become a multi-year Rising Star in Employment Law by Super Lawyers as a labor and employment lawyer with Scott Wagner and Associates, supporting clients in Florida, California & Ohio with employment law matters. Her expertise covers counseling on workplace policies/handbooks; investigations into EEO discrimination/retaliation claims; wage disputes & wrongful terminations - equipping employees across multiple states for success in the ever-changing modern workforce landscape. Leveraging extensive knowledge of state/federal regulations gained from handling dozens of cases over many years, Lindsey has established herself as a leader in the field. Lindsey is a seasoned litigator, well-versed in the complexities of employer and employee disputes. She has represented clients on both sides during numerous mediations and provides an informed perspective when advocating for her clients' interests. She sharpened her dispute resolution skills by completing Harvard Law School's Negotiation Mediation course as part of their Executive Education Program as well as a Florida Circuit Civil Certified Mediator - making her qualified to mediate Circuit Civil cases in Florida as well as California and Ohio. Her breadth of knowledge provides valuable insight into the complexities each side faces while navigating their way through conflict mediation situations. With her varied expertise in the world of entertainment industry employment law, Lindsey has become a go-to source for Hollywood professionals, studios, and companies looking to make sure their legal considerations and entertainment contract law knowledge is up to date. From contract negotiations and employment advice to her outstanding knowledge of current regulations, she provides clients with everything they need for success both now and into the future. Lindsey dedicates her time and expertise to advancing the legal community. She proudly serves on the Executive Council for Florida Bar Association Labor and Employment Section, as well as with American Bar's Membership Outreach Committee in a leadership role. Lindsey is also an respected LA Magazine Editorial Board Member while Co-Chairing both LACBA CLE Event Dinner Committees - focusing on labor and employment law developments. Lindsey is passionate about providing accessible legal services to those in need. She serves on the Pro Bono Mediation Panel for the U.S Central District Court of California, volunteers as a mediator with California Lawyers for Arts and acts as Settlement Officer with Los Angeles Superior Court's ResolveLA program - all while donating her time towards resolving disputes through pro bono mediation at Equal Employment Opportunities Commission (EEOC). Lindsey is a globetrotter, an outdoor enthusiast, and dedicated sports fan all rolled into one. While splitting time between California, Florida and Ohio she has the best of three world - from hiking trails to family gatherings there's always something interesting on her horizon! Plus with photography as a hobby Lindsey enjoys capturing life’s precious moments so they can be treasured for years to come.
February 14, 2023
Robert is a sixth-generation Tennessean and part of a long line of Tennessee attorneys: There has been a Marks attorney in Tennessee since 1856. In 1929, Robert’s great-grandfather established an event venue, Shadowbrook, which Robert has worked at his entire life, including managing for 10 years. He knows what business owners are dealing with—especially venue owners—because he has dealt with it. While Robert loves the hospitality industry, he pursued his passion. In 2016, Robert decided to attend law school and continue managing the business. He thrived. He was a founding member of the Nashville School of Law's Legal Aid Society, received the Tennessee Supreme Court’s Law Student for Justice award, and interned with the Tennessee Supreme Court's Access to Justice Commission. Before co-founding Mercury Legal Group, Robert focused on estate planning in solo practice. In this role, he helped clients protect what they had spent a lifetime building. Now he helps his clients build their businesses by providing tailored legal services.