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Severance Pay: Severance Package Legal Answers

Ever since the global COVID-19 pandemic began making its way across the United States, employers and employees have been asking more questions about employment contracts, unemployment benefits, and severance packages. This is a stressful time for anyone making or affected by staffing cuts. The following are answers to some of the most frequently asked severance package questions.

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What is a severance package?

In short, a severance package is an agreement between an employee and their employer which may offer a combination of cash and benefits upon the employee leaving the firm. They’re sometimes negotiated prior to someone being hired and may be part of a collective bargaining agreement should one exist. Some companies will offer a severance package to employees who are nearing retirement age, while others may plan a severance package in the event they are planning to close an office or plant or cut the size of their workforce.

Who is eligible for severance pay?

Generally speaking, the company policy decides who is eligible to receive severance pay, and often it is tied to a specific length of service. Whatever the policy, it is important to ensure it is applied fairly and consistently to avoid discrimination claims.

While severance pay is not standard, employees who are terminated by an employer with more than 100 people as part of a reduction in force (RIF) may require payment of severance unless the employer provides 60 days’ notice of a layoff, in accordance with the Worker Adjustment and Training Notification (WARN) Act. There are some states which have “mini” WARN acts, so employers should also be aware of those requirements.

Employers who are being forced to shutter their doors or temporarily lay off workers due to the current coronavirus pandemic should consider speaking with an employment attorney who is familiar with both federal and state WARN Acts.

How much is severance pay?

The amount of severance pay varies depending on the agreement reached between the employer and employee. In general, upper-level management personnel are more likely to get a more generous severance package. Typically, one can expect to receive the equivalent of one- or two-weeks full pay for every year of service. In addition, employees may also be entitled to a period of extended insurance benefits and outsourcing services to help them find a new job.

Employers may also include other benefits in their severance packages, such as an agreement to not contest a claim for unemployment benefits and payment for any unused sick and vacation days which were accrued (if not previously required to be paid by state regulations).

How is a severance package amount determined?

The severance package amount is nearly always determined by tenure and the pay of the employee at the time of their separation of service.

How is severance pay taxed?

Severance pay is taxed like any other payment the employee receives. That means the pay is taxed prior to remittance and federal, state, and local taxes are withheld.

How long does it take to get severance pay?

This depends on the agreement between the employer and the employee. In some cases, employers will pay out all severance pay in one lump sum. Other employers will payout in incremental payments  (weekly, biweekly, or monthly) until the employer has fulfilled the terms of the agreement.

How do you negotiate severance pay?

Employees can usually negotiate a severance package at the time of hire, or, in some cases, at the time their job is being cut. Typically, it is a good idea for an employer to have a firm severance pay policy in place which will cover all employees.

If you do not currently have a severance pay policy in place, it is recommended to consider adding one to your current Employee Handbook.

Is severance pay required by law?

There is no requirement under existing labor laws for an employer to offer a severance package. The only exception to this would be if the employer was not in compliance with state or federal WARN Act statutes. Of course, employers that contractually agree to a severance package are bound by those terms. 

As an employee, am I giving up rights by signing and accepting a severance agreement?

In most cases, an employee should have a severance agreement reviewed by a lawyer if they are uncertain about the terms of the agreement and how it will impact them. 

Need more help?

Employers can draft all of their human resources documents, including employment agreements and policy manuals, easily online using Rocket Lawyer. If you have specific employment-related questions pertaining to severance and how the COVID-19 pandemic may impact you or your employees, you can ask a lawyer for free through the Coronavirus Legal Center.

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