I’m going to give you some specific advice pertaining to age discrimination and severance agreements. As some folks know, I am Florida employment lawyer Jonathan Pollard. Our law firm Pollard PLLC has represented hundreds of employees in litigation, arbitration and mediation. Let’s jump in:
The Choice to Accept a Severance Payment. We have to start here. Every week, dozens of people will call our office and ask us this question, “Should I sign a severance agreement?”. Let’s be real. Deciding whether or not to accept a severance agreement is entirely up to you. It all depends on your individual life circumstances. Suppose you are being offered $10,000 in severance pay. And suppose you really need that $10,000. Then the answer is clear: You take the money. That same rule always applies. If you really need whatever severance is being offered, then you take the money. Because you have no other choice. Because rejecting a severance offer means you roll the dice. Maybe you get more. Maybe you get lots more. Or maybe you get nothing at all. Bottom line: You take the money if you absolutely need the money. If you don’t absolutely need the money, then you can consider your legal options.
21 days and 7 days. Under federal law, employees over 40 years old get extra time to consider a severance agreement and to change their mind and revoke their acceptance. If you are 40 or older, you have at least 21 days to consider a severance agreement. And you have 7 days after signing to change your mind and revoke your acceptance. Most big companies (big as in publicly traded) do a pretty good job of following these rules. But we see plenty of cases where companies (especially big privately held companies) blatantly violate these rules. We routinely see privately held companies with 100+ employees giving older workers 48 or 72 hours to sign a severance agreement. That is illegal and any agreement signed in such circumstances can be rescinded.
Right to Know. Most people don’t know this. But if a company terminates two or more employees who are 40+, that triggers additional requirements. In that situation, the company is required to provide you additional information regarding the “layoff”. That information includes: (1) The ages and roles those terminated. (2) The ages and roles of those retained. (3) The criteria used to select who was laid off vs. who kept their jobs. Companies frequently do not give you this information unless you ask for it. And it’s important for you to have this information because that will help you evaluate whether or not you could have an age discrimination claim.
Botton Line Practical Guidance: If you are being offered a severance package and you truly need the money, you take the money. Otherwise: You only have an age discrimination claim if you can prove that you were discriminated against because of age. That means that either (1) there were ageist comments directed toward you or (2) you were clearly treated differently / worse than younger employees and deprived of important work opportunities and (3) there was an adverse employment action against you (i.e. termination, demotion, hours cut, salary cut, etc).
Does our firm advise on severance agreements? Not really. That’s just not what we do. We litigate cases. We’ve done it for 10+ years. That’s what we are set up for. Some employment lawyers focus mostly on negotiating severance agreements and settling cases. That’s not us.
Do we occasionally negotiate severance agreements? Sure, if there is a lot of money on the line. But otherwise, it doesn’t make sense. There are other lawyers you can hire who will charge way less money. I have no interest in charging someone $2,500 or so for us to review their severance agreement when they are getting paid $10,000 or $20,000 — and are almost certain just to take the money in the end. That doesn’t make any sense.
Who should contact our office? Folks who believe they have a strong claim of age discrimination, direct evidence of discriminatory comments or conduct, strong history of job performance with the company, and an adverse employment action (i.e. termination, etc). If that is you and you are willing to pursue litigation if necessary, feel free to reach out. A member of our team would be happy to speak with you.
Jonathan Pollard is a Florida employment lawyer and the founder of Pollard PLLC. Pollard and his colleagues have litigated, arbitrated, or mediated hundreds of employment cases. The firm routinely represents clients in discrimination, retaliation, sexual harassment, and sexual assault cases. Pollard and his colleagues have been honored by Super Lawyers and ranked by Chambers & Partners. The firm has offices in Fort Lauderdale, Miami, and St. Louis. The main office can be reached at 954-332-2380.