Should I contact an attorney to review or negotiate a severance agreement offered by a Florida employer?

When you are offered a severance agreement by your employer, you should contact a Florida employment attorney who can help you understand your options and potentially negotiate the severance terms and compensation.

There are many things that you need to consider when you are offered a severance agreement, and a knowledgeable employment lawyer can ensure that you are fully informed and provide you with a strategy to follow in moving forward. They can help identify and evaluate potential legal claims, such as discrimination or wrongful termination, that could support a higher severance before you sign an agreement releasing all claims.

What You Need To Know

The first thing to know is that, under Florida law, unless you have an employment agreement that provides otherwise, you generally do not have a right to severance. This general rule applies to most employees in Florida. If, however, you are offered a severance agreement, you are not required to sign it. You may have the option to instead negotiate for a better severance, with the help of an attorney who is experienced in such negotiations.

Nearly all severance agreements include a waiver or release of all potential claims against your employer. This can be incredibly important if you believe that you may have a claim against your employer for workplace discrimination or that you were improperly terminated. In such cases, it may be in your best interest to refuse a severance agreement if the employer is not willing to provide adequate compensation to justify releasing such claims.

Alternatively, even if you do not have a legal claim, you may still be able to negotiate the terms and compensation offered in the severance agreement with the guidance of an employment attorney. This often involves having an attorney draft, or assist you in drafting, a letter with a counteroffer highlighting the reasons, as a matter of fairness, equity or sympathy for the circumstances and consequences of your termination. 

Severance agreements are often times accompanied by onerous noncompete provisions or require your continued compliance with a noncompete agreement you signed with your employer. Increasingly, noncompete agreements are being challenged in court and may be found to be unenforceable, so employers may be willing to negotiate or adjust these restrictions as part of a severance negotiation.

What Are Your Rights?

When considering a severance agreement, it is crucial to understand your rights and options. Beyond understanding the legal aspects, several factors can influence the likelihood of a successful severance negotiation. These factors include the company’s general philosophy and willingness to negotiate severance and whether your employer may consider paying more severance rather than risking the costs and potential negative outcome if a claim is pursued or a lawsuit filed. Some companies take a hard line position, while others are open to making concessions to avoid the expenses and risks of litigation. Therefore, if you have a potential claim against your employer, you may be able to leverage that, with the help of an attorney, to obtain a favorable severance as a means of settling your claim.

Another important factor is whether your employer uses in-house counsel or outside attorneys. In-house lawyers tend to be more willing to negotiate to save the company money, while outside counsel might be more inclined to fight claims. Outside attorneys can also be more unpredictable. An experienced employment attorney can strategize to make sure the response to the severance agreement is presented to the right person in the best possible way to achieve success.

The last factor that can influence the success of severance negotiations is whether your employer has Employment Practices Liability Insurance (EPLI). If they do, then they will likely have an insurance adjuster who will be handling the negotiation of your severance agreement or settlement of your claims. Insurance adjusters often take a practical, objective approach that can lead to a more successful negotiation and result . 

Additional Aspects To Consider

It is important to note that attorneys may represent you in severance negotiations under different fee arrangements, including hourly or contingency (percentage of recovery). Depending on your personal situation and your ability to assume the financial risk of negotiating for higher severance, you may be able to obtain representation on a contingency basis, which is a more viable option than paying a substantial retainer and hourly fees to an attorney. In some cases, however, a retainer and hourly fee arrangement may be preferable, so you should address these questions with your attorney at your initial consultation.

There is often an understandable concern that the employer may withdraw the severance offer if you attempt to negotiate. However, it is rare for the employer to do so as the withdrawal could form the basis of an additional claim of retaliation and motivate you to pursue your claims against the company. One exception that may justify withdrawal of the severance offer is when the company believes you are violating a noncompete agreement, possibly resulting in lost revenue to the company. However, even in that circumstance, a qualified and experienced employment attorney can often work toward a resolution that may still include more severance and also allow you to keep your new job without fear of a lawsuit being filed against you.

Take Control: Explore Your Options

The bottom line is, in most cases, particularly where a viable claim may exist, negotiating with the assistance of an employment attorney often results in better severance terms and compensation. 

Consulting with a Florida attorney can provide you with the guidance necessary to navigate severance negotiations effectively. By understanding your rights and negotiating strategically, you can work toward securing the best outcome possible in your situation.