1. If I negotiate my severance, will my employer take the original offer off the table?
Probably not. This is possible but not likely. Your former employer offered you severance in exchange for your promise to shut up, go away, and not sue them. It is unlikely that they will pull the offer simply because you asked for money. Frankly, doing so would likely cause them to suffer precisely the consequences they sought to avoid by paying you severance in the first place – i.e., you would be much more likely to sue. So while it is theoretically possible that your original severance offer will be pulled if you negotiate, it is highly unlikely.
Granovsky & Sundaresh has negotiated thousands of severance agreements. In all of our negotiations, an original offer has only been threatened twice, and that threat has never been carried out. Obviously, this is not a guarantee, but it should provide some sense of how these work and help you assess your risk.
For more on this topic, click here.
2. Why is the non-disparagement clause unilateral? Is there a way that the company can be prohibited from disparaging me?
Sort of, but you probably don’t need it. Non-disparagement clauses have to be unilateral because they are personal. While you, an individual can promise not to disparage the company, an entire company cannot promise to never disparage you. This is because the company is comprised of many people and the company cannot control the actions of all of these people. It is possible that someone may disparage you without the company’s knowing. However, if a company has a “neutral reference” policy, then the company’s official statement on you will be limited to your tenure and positions held, which is sufficient for most people. Sometimes, but rarely, we will arrange for one of our clients to create a “control group” within the company of people who are specifically instructed not to disparage. While this sounds nice, it may be counterproductive. If these folks did not like you before you left, they are going to hate you after they are hauled into HR and given a specific talking to about how they are never to speak ill of you.
Nevertheless, we take our clients’ reputation management very seriously, and absolutely make sure to do everything in our power to protect and preserve our clients’ reputations.
For more on mutual non-disparagement, click here.
For more on neutral references, click here.
3. Can I get benefits with my severance?
Yes, but benefits are something you buy with money, so we encourage our clients to negotiate for more money which they can then use to purchase benefits (or groceries, cars, vacations, etc.). Part of the reason for this is you may not need the benefits as much as you think – for example, if you get 6 months of COBRA reimbursement, but find a new job within 2 months, you’ve now got 4 months of benefits that you cannot use. On the other hand, if you get 6 months of salary, but find a job within 2 months, we are pretty confident that you can find something to do with that money. Lastly, for nearly every employee, a month of salary is worth much more than a month of benefits (i.e. one month of salary can be used to purchase several months of benefits), so we make sure to speak to each of our clients about prioritizing their interests before we negotiate on their behalf.
4. Will I be blackballed if I ask for/negotiate my severance?
Probably not. This is possible, but highly unlikely. The whole point of a severance agreement is for both sides (the employer and the employee) to move on amicably. Granovsky & Sundaresh always approaches severance negotiations in good faith and without threats or unnecessary hostility, and have not created ill will by virtue of negotiating. Also, keep in mind that in order for your former employer to blackball you, they will necessarily have to go into the underpinnings of your complaint/issues, which would almost certainly not look good for them. Besides, your former employer wants to move on, and wants you to move on – that is the whole point of a severance, and blackballing you would have the precise opposite result.
5. What is the “right” amount of severance?
As much as you can get! Unless you have a contract that provides for severance, you have no entitlement to severance. However, you can do two common sense things to educate yourself about what to expect. First, there may be a company policy about severance – take a look at your employee handbook, offer letter, etc. Second, you can ask around – although severance agreements are typically confidential, you might still be able to find out what other employees received.
Once you’ve educated yourself, you need to evaluate what leverage you have to increase your severance amount. Typically, the best sources of leverage for severance agreements are: (1) legal leverage (i.e. your ability to go to court and sue for more than you are being offered via severance), (2) personal leverage (the fact that the people at the company like and care about you), and (3) professional leverage (the company’s desire/need to maintain a good relationship with you and it’s reputation within the business community.
For more on sources of leverage in severance negotiations, click here.