Playing the Wrong Cards in Severance Negotiations

It is common for employees (including professional and executive employees) to play the wrong cards, so to speak, during severance negotiations.  That is, employees negotiating severance agreements often raise issues to their employers that they believe, incorrectly, provide strong leverage or potential legal claims.  Don’t get me wrong.  Many employees who are fired and/or approached with a severance agreement do in actuality have potential legal claims that could provide strong leverage in severance negotiations or litigation.  Sometimes it takes me a few hours of discussion to identify such material legal issues and evidence, but they’re often there.  The problem is, most employees who have winning issues fail to recognize what those winning issues are.  And in their negotiations with employers, they commonly focus on issues that seem to be winners from a common-sense perspective (or workplace-observation – or Google-search- perspectives), but are in fact issues the employer’s employment lawyer or HR rep would quickly deem useless in the legal world.

Most employers involved in severance negotiations get the assistance of representatives who have repeat experience with scenarios and litigation relating to job terminations and severance agreements.  They are adept at diagnosing issues that could present legal exposure to the employer.   Are you?  If you think you’re playing a winning hand, but the employer sees the hand is in fact a dud, you may want to have an employee rights attorney review the hand before you set it down.  If a proposed severance agreement’s terms are acceptable, of course, there is no need to show anyone any cards.  In the end, it’s better to show an employer no cards than bad cards.  Bad cards do not leverage better severance terms and may invite negative reactions from the employer that make you worse off.  If you think you may have good cards (i.e. potential legal claims with strong merits), consider checking if an experienced legal representative agrees before you share those views with the employer.