With layoffs sweeping the nation, we’ve been getting a lot of questions about what to do if you are one of the victims of a workforce reduction.
Here are 6 important reminders and tips to protect you as an employee if you're the subject of a layoff:
(1) Review your original employment agreement. Oftentimes, the terms of your layoff may have been negotiated or agreed upon at the outset of your employment, when you received an offer letter or signed an employment contract. Regardless of whether you are offered a severance package, be sure to review any employment agreements or employment handbooks you signed (or ask HR to send you relevant copies), and check for terms relating to, among other things, (i) the termination process, (ii) entitlement to severance, (iii) entitlement to payouts for accrued vacation, sick, and personal time, and (iv) any obligations that arise upon termination—such as confidentiality or non-compete constraints.
(2) Carefully review the severance package. If you are being offered a severance package, then it ordinarily means that you are being asked to release your employer from all potential liability related to your employment in exchange for some benefits (typically the equivalent of a few weeks, months, or even years of pay). Be sure to carefully review the package to understand what rights you’re giving up by accepting it. Absent special circumstances, once you sign a release, you cannot go back and file a lawsuit against your employer related to any claims that arose during your employment, as you waived those claims when accepting the package.
(3) It is OK to negotiate the terms of your severance package. Most of the time, employees are so gutted by the news of the layoff and the fear of being without income that they agree to all of the terms of the severance package and sign away all of their rights. Or, they don’t know whether a severance package is an opening offer that can be negotiated. This is where it is helpful to engage a lawyer who is not emotionally invested like you and can advocate for your rights.
Some things to look out for in the severance/release agreement that may be one-sided and overbroad and that you can consider negotiating:
· Non-compete clause: if enforceable, this could adversely impact your ability to get a job in the industry, so be sure it is narrowly-tailored
· Confidentiality: ensure this is not overbroad such that it ties your hands from doing your work in another role
· Non-disparagement: if this is one-sided and prevents you from talking about your experiences at the company, then this may need to be reviewed
· Basis for termination: ensure that your basis for termination is not “for cause” and that they will not adversely impact or hinder your ability to get future jobs when background checks are done
(4) Determine what you can and cannot take with you. Normally, when you give two weeks notice to leave a job, you have ample time to wrap up your assignments, develop a summary of your accomplishments, gather approved work product to take with you, and organize your rolodex of contacts (both clients and co-workers).
In a layoff situation, however, the company is calling the shots and giving you limited time to wrap things up. You cannot take everything with you, even projects that you developed or were overseeing. Before taking items with you, review company policy and reach out to HR if you are in doubt. Some items to look out for that you will likely be able to take are:
· your personal contacts in your address book,
· specific work product you’d like to take with you
· your internet bookmarks
· your login/password information and documentation for all of your healthcare and other company benefits (e.g., 401K)
· your performance reviews
(5) Be sure you’re paid what you’re owed on the last day of employment. Under California law, an employee must be paid out for all accrued vacation time and any other accrued earnings on the last day of employment. If you are not paid on the last day, then there are consequences for your employer. Consult with a lawyer if you’re unsure what this means for you.
(6) If you think your layoff was pretextual, do not sign anything! Layoffs occur at companies because there are economic or business issues impacting their bottom-line. However, if you believe the layoff was pretexual and you were let go because you are a member of a protected class (e.g., you were terminated because of your race, gender, gender identify/expression, sexual orientation, age, disability, veteran status, etc.), then preserve evidence of your employer’s discriminatory actions and immediately retain counsel to protect your rights.
While these are some high-level tips to get you through what can be a difficult experience, please remember that you are not alone. Layoffs are incredibly difficult, but manageable, if you take the appropriate steps to protect yourself and your future employment opportunities. You got this!
If you have questions and would like to talk with an attorney, please contact L. David Russell (David@RussellLawPC.com) to discuss in more detail what legal options you may have available.
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