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Do you have leverage to negotiate your separation agreement?

Many employment relationships, even those that are at will, are framed by contractual relationships. The employment agreement might specify the work duties, employment benefits and other terms at the outset, and a separation agreement might describe how that relationship will end.

In reviewing a separation agreement and potential severance package, our employment law firm will inquire about the circumstances. The starting point is the employment contract. For example, union members or employees under a contract for a specified time frame may have contractual remedies they should pursue in the event that any material terms of their contract were breached.

Employment contracts and/or collective bargaining agreements may also specify how employment disputes are to be resolved, such as filing a grievance through one’s union or by bringing a matter to binding or non-binding arbitration. The employment agreement may also impose requirements upon any separation agreement and/or severance package details.

Another inquiry regarding a separation is potential discrimination. If an employer is attempting to influence an employee’s quiet departure for unlawful reasons, perhaps by disguising a wrongful termination, it is important to consult with an attorney before singing any agreements. Various New Jersey and federal laws prohibit firing on the basis of enumerated, protected categories, including race, gender, religion, marital status, place of national origin, age, actual or perceived disability, pregnancy and sexual preferences.

If a separation is for lawful reasons, on the other hand, an attorney may still evaluate an employee’s potential leverage for negotiating the separation agreement and severance package. There may be opportunities to negotiate terms such as an employer’s providing neutral references, an amount of money for severance, and the scope of any non-compete contracts.

Source: FindLaw, “Severance Packages: Are Benefits, Severance Pay on the Table?” copyright 2016, Thomson Reuters

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