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Red flags in severance agreements 

Severance agreements can be a helpful tool for transitioning through a job loss. They extend some temporary stability during a time of upheaval by offering benefits like pay, insurance coverage and even continued access to company perks.   

But businesses don’t trade away money and benefits without asking for something in return. Severance pay isn’t required by federal law, and Georgia is an at-will employment state, so companies are free to fire employees at any time, for any reason—so long as it’s not because of a protected characteristic, like race, religion, color, sex, national origin, age, genetic information and disability.   

Still, many companies choose to offer severance packages. Doing so helps limit damage to their intangible assets, like public goodwill, and their reputation as a great place to work. It’s not all about marketing and recruiting, though. Severance agreements typically include a release or waiver of liability for claims. Essentially, in exchange for the severance payment, an employee agrees to forgo the right to pursue any legal claims against the company.   

The severance agreement is often presented to an employee at an emotionally vulnerable point—the time of termination. It is no surprise that employers might sometimes abuse the process. While a severance agreement should work to everyone’s benefit, there are some red flags departing employees should watch for:  

You’re pressured to sign  

You are in no way required to sign a severance agreement or release of claims.  

After a layoff, it’s easy to feel overwhelmed by all of the emotions that come with being let go—the surprise, disappointment, fear, self-doubt or even anger. It can be hard to carry out a conversation during a termination meeting, let alone review and sign a document.    

Companies should never pressure employees to sign severance agreements on the spot, or imply that they have to. Workers who are 40 or older have clearly defined protections in this respect. The Older Workers Benefit Protection Act (OWBPA) gives them 21 days to consider the agreement and a further 7 days after signing to change their minds. If the layoff is part of a larger downsizing, they have 45 days to review the agreement. Even if you’re under 40, many companies extend the OWBPA decision period to all employees—it’s always OK to ask HR how long you have.   

The agreement contains restrictive covenants   

Restrictive covenants, including non-competition clauses, confidentiality clauses, non-disparagement clauses, cooperation clauses or non-solicitation clauses, can seriously limit your career prospects, making the immediate gains—short-term severance pay—not always worth the sacrifices.    

While such covenants are becoming more and more common, you’ll want to carefully review the language before signing. If they bar you from working in your field for a period of time, your severance compensation should absolutely support you during that required career pause. But also ask yourself if that is what you want. Maybe you know you have strong contacts at another company and you’re ready to make moves towards a new job there. Or you’ve been considering starting your own business for years and don’t want to feel held back.   

Leaving money behind may be challenging during the uncertainty of a layoff, but, in some cases, it’s more advantageous to walk away without limiting your future flexibility and independence.   

You’ll be held responsible for damages    

If you’ve spotted restrictive covenants in your severance agreement, you’ll also want to look out for liquidated damages clauses, which set a fixed compensation amount for contract breaches. Typically, a business has to prove it was harmed by a breach of contract. If, for example, a company wanted to argue an employee’s violation of its confidentiality clause hurt them in some way, they’d have to demonstrate how. But with a liquidated damages clause, they can collect a lump sum from the former employee if a contract violation occurred.   

Liquidated damages clauses also pop up sometimes in employment contracts, even dictating the terms of your eventual exit. If you’re working with an employment attorney on a severance review, it’s often smart to return for an employment contract review down the road.  

You’re asked to give up rights  

A waiver of liability for claims is expected in any severance agreement. A company offers the goods—pay, insurance and other benefits—in exchange for the agreement not to sue. This in itself requires consideration if you believe the terms of your dismissal were unfair. Discrimination suits can be challenging, and it takes an employment attorney to give you a realistic assessment of your prospects.  

But while it’s fair for a company to ask you to sign a release of claims (so long as they’re offering you something in return and not pressuring you to agree), there are limits. A company should not:  

  • Ask you to release rights you cannot waive in the first place, like your cooperation with an Equal Employment Opportunity Commission (EEOC) investigation  
  • Ask you to waive future claims—claims that may happen after you sign the document   
  • Ask you to give up things you’re entitled to under federal or state law, like COBRA insurance coverage, unemployment compensation or workers’ comp pay  

You’ll need to “stay available for questions”  

If you’re asked to work for a period of time before your official end date begins, or if you’re asked to help with training, answer questions or otherwise keep the ship running after you’re no longer employed, that’s an issue. If your severance contract hints at situations that don’t quite sound like an actual split, you’ll want to speak to an employment attorney to clarify what’s being asked of you and what payment you should expect in return.   

You get a lowball pay offer  

Employers typically offer one to two weeks of pay per year worked. Managers and executives typically get more. If you’re offered less than two weeks per year, or if your company suggests a small lump sum, that’s a sign there could be other issues in the contract. Unfortunately, many employees don’t realize this, believing a severance offer is a one-way negotiation. Your time with the company, your performance reviews and documentation of your ideas and contributions all increase your leverage.   

You should also have an exact understanding of how and in what increments your former employer will make severance payments.   

If you have earned benefits, like vested commissions or, in some cases, unused PTO, be sure this isn’t lumped in with your payments. The company cannot use compensation you have a right to as consideration for releasing employment claims.  

Schedule a severance agreement review with Radford Scott    

Severance agreements should help you move on in your career—not hold you back. If you’ve been affected by a layoff, contact an employment lawyer to set up a severance package review. We’ll offer you legal advice, helping you avoid pitfalls and negotiate for what’s fair. And when you’re ready for your next position, we can take a look at your employee contract to ensure you’ll be off to a good start. Contact Radford Scott today to set up your severance review.   

 

Employee rights under the Family and Medical Leave Act (FMLA)

At the best workplaces, employers accept and understand that employees have lives outside of their jobs. While it can be tricky to balance overlapping responsibilities at times, most people make it work. 

Sometimes, though, a health issue or life change takes precedence over everything else. Maybe it’s a happy event, like the birth of a child or adoption. Or it’s something less expected, like a car accident injury, a spouse’s cancer diagnosis or a parent’s broken hip. The Family and Medical Leave Act (FMLA) makes space for employees to get the care they need, or to care for a close family member, without having to choose between their family and their job. 

FMLA has its limitations: It’s only available to eligible employees, and it can be unpaid. But employers also sometimes abuse their workers’ FMLA rights, interfering with an employee’s leave request or retaliating against employees who invoke their rights. 

So what do you need to know about this federal protection, and what should you do if you think your employer is acting unfairly?  

Before you start: Are you eligible for FMLA? 

Many workers are surprised to learn they don’t have FMLA protections only after they have a health crisis, share pregnancy news with a boss or request time to care for a family member. Only 56 percent of employees are actually eligible for FMLA leave, according to a brief prepared by Abt Associates. 

To be eligible you need to: 

  •        Work for an employer with 50 or more employees, or work for a public agency or an elementary or secondary school (a “covered” employer)
  •        Have worked at the job for at least 12 months
  •        Have worked for at least 1,250 hours
  •        Work for an employer with at least 50 employees within 75 miles

 If you’re considering a job at a small firm or a remote position, it can be helpful to check the company’s paid leave and unpaid leave policies since you might not have FMLA eligibility.  

Your employer can’t threaten your job 

FMLA allows for up to 12 weeks of leave in a 12-month-period of unpaid, job-protected leave for qualifying reasons. During that time, employees can stay on their group health insurance plan (covering their own portion of the premium just as they would while working) and return to the same job—or, at least, to one that’s similar in pay and responsibilities. 

Holding open positions sometimes challenges employers, and there are ways to make the request for leave go more smoothly. The U.S. Department of Labor Wage and Hour Division, which administers FMLA, suggests giving employers 30 days’ advance notice when you know something is scheduled, like surgery, an induction or a first chemotherapy treatment. But when you have an urgent need, it’s acceptable to let an employer know as soon as you can. 

If your employer denies your family leave, suggests you should work through your medical condition or threatens your job, you’re being treated unfairly.

Your employer can’t ask for your medical records 

FMLA covers serious health conditions and major family needs, including: 

  •        The birth, adoption or foster care of a child, within one year of birth or placement
  •        The care of an employee’s spouse, son, daughter or parent with a serious health condition
  •        The employee’s own treatment and care during a serious health condition

Military family caregivers are also entitled to FMLA leave, as are active duty service members during deployments. 

While your employer may need some documentation to approve your FMLA request, you never have to share medical records, sign waivers allowing your employer to speak directly with your doctor or answer questions about your family history. 

Instead, your employer can ask for a medical certification—a document prepared by your health care provider that outlines your medical reasons and estimates how long you’ll require treatment. Medical certifications contain everything an employer would need in order to approve your FMLA without violating your patient privacy. 

Your employer can’t deny FMLA for mental healthcare 

If you need therapy, inpatient treatment, counseling or other mental healthcare for a qualifying serious condition, your employer can’t make a distinction between physical and mental health needs.  

Your employer can’t make you work on leave 

FMLA is unpaid leave. If your employer is asking you to work, remain available for questions or otherwise continue to do your job, you’re not being treated fairly.  

Your employer must provide an equivalent position upon your return 

While employers don’t have to hold open your exact position while you’re on leave, they also can’t switch you to a role with lower pay or fewer responsibilities when you’re back. 

Additionally, it’s illegal for employers to retaliate against you for taking FMLA leave. This might include setting you up for failure, giving you poor performance reviews, leaving you out of crucial meetings, changing your work schedule so that you can’t care for your family or even firing you. It’s here where FMLA violations often overlap with discrimination based on protected characteristics, like pregnancy, sex or disability. 

Contact Radford & Keebaugh to talk about your FMLA concerns 

If you are a covered employee, you have a right to FMLA and its job protections. If your employer has discouraged you from taking FMLA leave, demanded private medical information, threatened to reveal your medical condition or retaliated against you for using your leave, you should speak to an employment lawyer. If your employer has abused your FMLA rights, it’s also possible they’ve discriminated against you. 

 Contact us today to receive additional information and talk about your situation. 

Georgia Court of Appeals Grants Unemployment Benefits to Victim of Domestic Violence

In a landmark decision in Georgia Unemployment litigation, a three judge panel of the Georgia Court of Appeals has ruled that a domestic violence victim who quit her job because her violent abuser began seeking her out at work can receive unemployment benefits.  The Court’s decision adds yet another circumstance to the growing list of situations under which an employee may voluntarily quit his or her job and still have the potential to receive unemployment benefits. For more, see this article.

The claimant was a cashier who had suffered repeated violent attacks by an ex-boyfriend.  She was forced to change jobs and residences to escape this violence, yet the boyfriend somehow discovered where she worked and showed up at her place of work in direct violation of a restraining order.  Fearing for her safety, the woman quit her job.  The woman’s employer argued that she had quit for personal reasons that were not connected to her work, and she, therefore, should be disqualified from receiving benefits.  The Department of Labor agreed, as did a Fulton County Superior Court Judge who reviewed the case.  The Court of Appeals, however, disagreed.

The case, Scott v. Butler, et al., A14A0105, June 4, 2014, marked the first of its kind in Georgia. The panel’s ruling expanded upon well-settled Georgia law that a person has good cause to quit his or her job when being harassed or threatened by a co-worker or supervisor. Discussing similar rulings from other states, and citing “Georgia’s public policy favoring payment of unemployment benefits to persons who are unemployed through no fault of their own,” the Court held that the [claimant] had “met her burden of demonstrating that she is entitled to unemployment benefits.”  The Court went on to note that “[e]ven though the employer did not create or contribute to the dangers at issue, to deny [the claimant] benefits under the circumstances presented would, in effect, require her to work in a dangerous environment wherein she and numerous others would be unnecessarily exposed to the actual threat of violence due to circumstances that are entirely beyond their control. This would be an outcome that is unjust, inequitable, and inconsistent with the expressed purpose of the act.”

No matter the circumstances, if you have quit your job, or are thinking of quitting your job, call us!  Voluntary separation cases are much more complex than termination cases, and the team at Radford & Keebaugh has the knowledge, expertise, and experience to guide you through the process.  Call us at (678) 369-3609 or use our contact form.

I Quit! Can I Still Receive Unemployment Benefits?

People often ask us, if I quit my job, can I still recover unemployment benefits? The answer is, “it depends.”

There is a common misconception that an individual who quits his or her job will not be entitled to receive unemployment benefits. Fortunately, that is not always the case.  An individual who voluntarily separates from his or her job may receive unemployment benefits if they can show a “good work related cause” for their separation. A showing of “good cause” usually requires that the employee show that the terms and conditions of work have changed in a manner such that a reasonable employee would not be expected to continue that employment.  Though each case is different, The Georgia Department of labor and Georgia Courts have held that, under certain circumstances, the following situations may constitute good work related cause for leaving a job:

  • work conditions that either cause or aggravate a pre-existing medical condition to the extent the employee is unable to perform his or her job duties;
  • downgrading an employee’s position for reasons other than the fault of the employee;
  • a reduction in salary that falls below a reasonable rate for that industry or trade;
  • severe physical or verbal threats made by a co-worker or supervisor;
  • a material breach of the hiring contract by the employer;
  • unreasonable employer rules as related to proper job performance;
  • quitting after receiving notice of termination, but prior to the termination date;
  • being given the choice between quitting or being terminated.

Even if your situation differs from the situations listed above, you may still be entitled to benefits if you were given no reasonable choice, but to quit your job.  So, if you have quit your job, or are thinking about quitting your job, call us!  Voluntary separation cases are typically much more complex than termination cases, and we have the knowledge, expertise, and experience to guide you through the process. Call us at (678) 369-3609 or use our contact form.