Severance Agreements and Employment Separation Agreements During the Coronavirus Pandemic
In New York, and in most other states, employment is at will. Also, there is no legal requirement that an employer offer severance when it lays off or terminates an employee, unless the employer agrees to do so in an employment agreement or a collective bargaining agreement. A termination during the coronavirus pandemic can be particularly stressful since you may not be certain when you will be able to get out in the job market again. Additionally, a separation agreement will usually ask you to waive certain legal rights you may have. You should ask an attorney to review your agreement to make sure that you are not waiving any important rights, or not waiving them without adequate compensation. If you are faced with a severance agreement or employment separation agreement during the coronavirus pandemic, you should consult the New York City employment lawyers at Phillips & Associates. Our attorneys can provide severance agreement reviews and pursue related litigation on your behalf if needed.Severance Agreements and Employment Separation Agreements During the Coronavirus Pandemic
Separation agreements are contracts between employers and employees that determine the terms of the employee leaving the business. Sometimes the separation agreement is styled as a severance agreement. Severance or separation agreements can contain a range of provisions, including provisions that address the official date of termination, the amount of severance pay (if any), a waiver of rights, confidentiality of trade secrets, and non-compete or non-solicitation clauses. Therefore, separation agreements can include terms that are detrimental to an employee’s future employment prospects, which makes it important to get such an agreement reviewed. While, you may feel pressure to sign a separation agreement without legal advice during the coronavirus pandemic (“just to get the money”) you should still speak to an attorney to review the agreement….. So you know what you are siging.Severance Pay Provision
When an employer offers severance to a departing employee, the amount offered may be based on how many years you worked at the company and your position there. The agreement should set forth how the severance will be paid and whether it will be paid in a lump sum payment or installments. But again, a severance is usually offered in exchange for a waiver of legal rights.Other Provisions
A separation agreement may state the “official” termination date and the reason for termination. There may be a non-compete clause that restricts your ability to work in a certain industry within a certain geographical region. A confidentiality clause may restrict your ability to speak about the separation agreement, while a non-disparagement clause prevents one or more parties from disparaging the other involved.
The agreement may also include a clause about continued payments toward health insurance, as well as vision, dental, and group life insurance. Under the federal Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), an employer with a minimum of 20 employees needs to offer health insurance for terminated employees for 18 months at the corporate rate, but the employee needs to pay the full cost of what the employer paid. It may be possible to negotiate to have your employer make COBRA payments on your behalf. This negotiation may prove to be especially important in case you get sick during the pandemic.Releases and Waivers
Employers usually include a waiver (or release of claims) in a severance or separation agreement. The waiver prevents you from suing the employer on a range of claims that you may have had. You may be asked to release your right to sue your employer for discrimination, harassment, or retaliation based on a protected characteristic. If you have a protected characteristic, such as race, gender, sex harassment national origin, religion, disability, or age, and you suspect that it may have factored into your termination, you should consult an attorney.
You should receive adequate compensation for a waiver of your rights. Note that this does not include , payments for vacation days that you did not take or unused personal days. Those are generally dictated by the employment handbook. The compensation needs to be something that has additional value. Generally, a waiver may be found valid if you knowingly and voluntarily consented to it. However, there are special protections for workers who are 40 and older. Under the federal Older Workers Benefit Protection Act (OWBPA), there are several requirements that need to be satisfied for a waiver of age discrimination claims to be valid in a severance or separation agreementConsult an Experienced Employment Attorney in New York City
Many people are not prepared for the financial havoc that can result if they lose their jobs. If you have been offered a severance agreement or employment separation agreement during the coronavirus pandemic, you should ask Phillips & Associates to review the agreement and help protect your rights. We represent workers throughout New York City and in Westchester, Nassau, and Suffolk Counties. Call us at (212) 248-7431 or contact us through our online form for a free consultation.
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