Severance Package Negotiation and Evaluation

Main office: Marblehead, MA • Representing employees in Massachusetts and New Hampshire

A Significant Portion of Whitney Law Group’s Practice

A significant portion of Whitney Law Group’s practice is helping employees and executives who have been presented with a proposed separation package. This can be a confusing and difficult time, people are contemplating their next move in life while simultaneously being asked to make a permanent legal decision under a deadline.

Mark Whitney’s background is directly relevant here: he spent more than 30 years advising the employers who draft and present these agreements. He knows exactly what they include to protect the company, what they expect you to miss, and what room they have to negotiate. That knowledge is now available to you.

Questions Clients Typically Have About Their Severance Package

These are the questions Whitney Law Group hears most often, and answers, in severance evaluations:

Why was I selected instead of someone else?
Is the amount I am being offered fair?
What do companies usually offer in similar circumstances?
I believe I’m being offered less than other employees who were let go. Does that matter?
Should I ask for more, and if so, how much?
Do I have a legal claim against my employer that affects the leverage I have?
How does a potential legal claim interact with the severance negotiation?
Am I eligible to collect unemployment benefits if I sign?
What restrictions does the agreement place on my future employment?
What are the non-disparagement and reference terms in the agreement?

What a Severance Agreement Actually Is And Why Review Matters

A severance agreement is a contract in which you permanently release legal claims against your employer in exchange for money and other consideration. Once signed and the revocation period has passed, those claims are gone. The agreement was drafted by the employer’s counsel to protect the employer, and it does its job well.

Massachusetts Wage Act

Earned wages (including accrued vacation and earned commissions) cannot be conditioned on signing a release. They are owed to you regardless. Severance agreements that purport to condition payment of earned wages on signing may not be fully enforceable to that extent.

OWBPA for employees 40+

Federal law requires 21 days to review any severance that includes a waiver of ADEA (age discrimination) claims, plus 7 days to revoke after signing. In group layoffs, the review period is 45 days. Agreements that don’t meet these requirements may not effectively waive age claims.

Non-compete provisions

Severance agreements frequently include non-compete and non-solicitation clauses. Under Massachusetts law, these provisions in severance agreements are not covered by the 2018 Non-Compete Reform Act’s garden leave requirement, which means they are subject to a general reasonableness standard, but are often negotiable.

What Whitney Law Group Negotiates in Severance Agreements

Increased cash severance – additional weeks of pay beyond the initial offer
Equity acceleration or extended exercise windows for unvested stock options or RSUs
Bonus proration for the period worked in the termination year
Removal or narrowing of non-compete provisions
Non-solicitation carve-outs for former clients who initiate contact
Agreed reference language – what the company will say and to whom
COBRA subsidy beyond the standard offer
Outplacement services
Mutual non-disparagement (binding on the company, not just the employee)

Frequently Asked Questions - Severance Package Negotiation

Q: My employer said the severance offer is final and they won’t negotiate. Is that true?

It rarely is. Employers say this as a starting position, not a final one. Even when the base severance amount is fixed by a company-wide RIF policy, other terms are almost always negotiable: the scope of the non-compete, the non-solicitation definition, the reference language, COBRA terms, equity vesting, and the mutual vs. one-sided nature of the non-disparagement clause. In addition, if you have underlying legal claims (discrimination, retaliation, Wage Act violations), those claims give you leverage that has nothing to do with the company’s standard policy. Whitney Law Group has negotiated improvements to “final” offers in the majority of severance engagements.

Q: I think my termination may have been discriminatory or retaliatory. Should I still negotiate the severance or should I file a claim?

These are not mutually exclusive, but the sequencing and strategy depend on the strength of your claim, the size of the severance, and your goals. In many cases, the existence of a legal claim is the most powerful negotiating tool available, and a substantially better package can be obtained without filing anything. In others, the offered severance is inadequate relative to the claim value, and litigation or an MCAD charge is the better path. Whitney Law Group evaluates both simultaneously and advises on which approach maximizes your outcome. Do not sign anything before having this conversation.

Q: How quickly can Whitney Law Group complete a severance review?

Typically within 24 to 48 hours of receiving the agreement and relevant background information. Most clients have a 21-day review window under federal law (45 days in group layoffs). Whitney Law Group prioritizes severance reviews and can turn around an initial assessment, a plain-language explanation of every key provision, and a written counter-proposal strategy within that window. Call the same day you receive the agreement.

Schedule a consulation in Marblehead, MA

Serving Marblehead, MA and the North Shore

Whitney Law Group’s main office is at 11 State Street in Marblehead, MA, the firm’s home since its founding in 2017. We serve clients throughout Essex County and the North Shore, including Swampscott, Salem, Beverly, Peabody, Danvers, Gloucester, Newburyport, and Marblehead. Virtual consultations available statewide.