When Should an Employer Offer Severance Payments?

Understanding Severance Payments:

We are often asked, “under what circumstances should an Employer offer Severance and is there a Standard Severance Agreement that applies to all separations?”

Severance is not required by law. Severance payment is either provided to a long-term employee to thank them for their service and tie them over while they find new employment and/or to resolve any disputes or actual, threatened or potential claims in exchange for a release of claims.

Offering a voluntary severance package should be considered if, for example,

An employee is terminated for reasons other than serious misconduct,
An employee knows where all “the bones are buried” in connection with Corporate and personal executives, including, legal claims, compliance, potential unlawful actions involving financial, corporate, or business decisions, such as a personal assistant, billing or accounting personnel;
Documentation regarding the employee, or lack thereof, may create employer liability;
An employee engaged in protected activity, such as, complained about unlawful conduct or made a sexual harassment complaint within the last 6 months to one year of the termination;
An employee is a long-term employee who is a member of one or more protected classes, such as, age, race, sex, etc. and any other circumstances that may give rise to discrimination or harassment claim,
An employee has already raised employment-related claims, or initiated charges or legal action against the employer,
An employee can raise colorable legal claims against the employer, and is likely to do so, such as, violation of wage and hour laws, or is entitled to attend rehabilitation under California law, etc.
An employee is needed to testify in upcoming matters such that cooperation is key.

There is no one-size-fits all severance agreement. Although there are certain provisions that are standard, the vast majority of the agreement must be customized to address the employment matter at hand. The decision to offer severance, the material and non-material terms of any proposed agreement, scripting and documenting the meeting and presentation of the proposed agreement, negotiation of terms and finalizing the agreement should all involve experienced employment counsel.