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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.
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 liability release 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.
Meet some of our Severance Agreement Lawyers
Jay Pink is an attorney who works with businesses and families on estate planning, and business law matters. Having his CPA license, and working in multiple family businesses over his career has positioned him to provide valuable insight on successful business operations. He has formed many entities - LLC's, Corps Partnerships and non-profit organizations.
Skilled in the details of complex corporate transactions, I have 15 years experience working with entrepreneurs and businesses to plan and grow for the future. Clients trust me because of the practical guided advice I provide. No deal is too small or complex for me to handle.
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I am an experienced technology contracts counsel that has worked with companies that are one-person startups, publicly-traded international corporations, and every size in between. I believe legal counsel should act as a seatbelt and an airbag, not a brake pedal!
Attorney (FL, LA, MD) | Commercial Real Estate Attorney and previous Closing Manager (Driving Growth from $10M to $50M+/month).