Negotiating a Severance Agreement

[Novice]

My question involves labor and employment law for the state of: NJ

My company has been executing consistent RIFs (reductions in force) in small chunks for the past several years. Job functions have been largely offshored and many individuals in my department have already been let go.

I expect that my time is coming shortly. My question is, has anyone had any particular experience and/or success in negotiating against a "standard" severance package that is offered by a company?

My situation is that I am a male, approximately 50 years old, approximately 20 years employed by the company. My performance reviews have been consistently good, and I have always been ranked among the top in my position during evaluations.

I've been told that the company offers a package of 2 weeks pay per year served + unused vacation pay + pro-rated bonus and some job placement services, either as a lump sum or continuing pay until exhausted, in exchange for waiver of whatever rights one may have.

Given my age and the current job environment, I'm hopeful that there is some proven strategy to negotiate something better.

[Zigner]

My question is, has anyone had any particular experience and/or success in negotiating against a "standard" severance package that is offered by a company?

There is no such thing. You negotiate whatever you can negotiate. Please bear in mind that it is unlikely that your employer is legally required to offer you any severance.

[PayrolGuy]

What leverage do you think you have to negotiate a better than standard severance package?

[Novice]

I don't know whether or not my situation falls under the realm of any discrimination laws. I am over 40, qualified and highly rated at my job, however, the company has brought in a large number of consultants, who have taken over the work of both the people who have previously been let go, and largely the work of those that still remain.

I do feel that having been a high performing and long term employee, having never been reprimanded or encountered any similar issue, and with a great deal of knowledge of my own job functions as well as overall operations, I may have some means to negotiate something better.

I'm just wondering if others have had success with this, or if I would be chasing something futile. I understand that there is no requirement for the company to offer severance in the first place.

[cbg]

Nothing that you have posted so far suggests any kind of illegal discrimination. Being over 40 only means you can't be let go BECAUSE you are over 40; it doesn't mean you can't be let go at all.

You said that many people are being let go. Are they ALL over 40, or are they of all ages?

[Novice]

I can't say for certain that ALL people being let go from my department are over 40, but definitely a large percentage.

[PayrolGuy]

I can't say for certain that ALL people being let go from my department are over 40, but definitely a large percentage.

Then you have some research to do. To be successful in an age discrimination suit you will have to show that YOU were terminated because YOU are over 40. Showing that you and other 40+-year-old employees in the same situation were terminated and many <40-year-old employees were not will help you do that.

Keep in mind that they haven't yet terminated you.

[Taxing Matters]

To be successful in an age discrimination suit you will have to show that YOU were terminated because YOU are over 40. Showing that you and other 40+-year-old employees in the same situation were terminated and many <40-year-old employees were not will help you do that.

I disagree. Showing a pattern of what appears to be discriminatory behavior does indeed help to prove a discrimination case. Indeed, you see evidence of that kind of pattern used often in these kinds of lawsuits. If it's just a single employee the employer will offer up some nondiscriminatory excuse for firing the employee and that may be hard for the employee to rebut. But when the employer has been letting go a lot of older employees at rates significantly higher than younger employees that makes it easier to argue that the employer's supposed justification for the termination is a lie and that the real reason for the termination was the employee's age. It's easy for an employer to say one older employee is crappy with a straight face even if he wasn't crappy. It's harder for the employer to say that all those older employees that were fired were crappy while the younger ones weren't. As a federal district court explains:

The defendant also argues that information regarding prior complaints is not relevant. The plaintiff contends that the information is relevant to the defendant's motive and intent and to the plaintiff's argument that the defendant's reasons for firing him were pretextual. The court agrees. “Evidence relating to company-wide practices may reveal patterns of discrimination against a group of employees, increasing the likelihood that an employer's offered explanation for an employment decision regarding a particular individual masks a discriminatory motive.” Moll v. Telesector Res. Grp., Inc., 760 F.3d 198, 204 (2d Cir. 2014) (quoting Hollander v. Am. Cyanamid Co., 895 F.2d 80, 84 (2d Cir. 1990)). See Lieberman v. Gant, 630 F.2d 60, 69 (2d Cir. 1980)(“Evidence of general patterns of discrimination by an employer is relevant even in an individual disparate treatment case.”); Carter v. Logan Bus Co., No. 15CIV5217ENVJO, 2016 WL 5231800, at *2 (E.D.N.Y. Sept. 21, 2016) (affirming magistrate judge's order requiring discovery concerning other employees and noting that “[d]efendants seem to confuse pattern-or-practice discrimination claims, which are not at issue in this case, ... with the routine use of circumstantial evidence of a pattern of discrimination to support an individual disparate treatment claim, see Hollander, 895 F.2d at 84-85.”); Sasikumar v. Brooklyn Hosp. Ctr., No. 09 CV 5632, 2011 WL 1642585, at *3 (E.D.N.Y. May 2, 2011) (holding that “courts in this circuit have repeatedly found similar complaints of discrimination by corporate employers to be relevant and discoverable” and granting motion to compel defendant to produce complaints by employees of defendant's nursing department alleging discrimination and/or retaliation based on national origin, race, color or age for the years 2001 to 2005); Culkin v. Pitney Bowes, Inc., 225 F.R.D. 69, 71 (D. Conn. 2004) (“Evidence of general patterns of discrimination by an employer is clearly relevant in an individual disparate treatment case and is therefore discoverable pursuant to Fed. R. Civ. P. 26(b)(1).”)

Huminski v. Stop & Shop Supermarket Co., No. 3:16CV1136(RNC), 2017 WL 2779468, at *2 (D. Conn. June 27, 2017)(Bolding added.)

Bottom line: evidence that points to a pattern of discriminatory treatment of older employees is relevant in an age discrimination claim and is useful in proving that the employer discriminated against the plaintiff employee.

[PayrolGuy]

I disagree. Showing a pattern of what appears to be discriminatory behavior does indeed help to prove a discrimination case. Indeed, you see evidence of that kind of pattern used often in these kinds of lawsuits. If it's just a single employee the employer will offer up some nondiscriminatory excuse for firing the employee and that may be hard for the employee to rebut. But when the employer has been letting go a lot of older employees at rates significantly higher than younger employees that makes it easier to argue that the employer's supposed justification for the termination is a lie and that the real reason for the termination was the employee's age. It's easy for an employer to say one older employee is crappy with a straight face even if he wasn't crappy. It's harder for the employer to say that all those older employees that were fired were crappy while the younger ones weren't. As a federal district court explains:

The defendant also argues that information regarding prior complaints is not relevant. The plaintiff contends that the information is relevant to the defendant's motive and intent and to the plaintiff's argument that the defendant's reasons for firing him were pretextual. The court agrees. “Evidence relating to company-wide practices may reveal patterns of discrimination against a group of employees, increasing the likelihood that an employer's offered explanation for an employment decision regarding a particular individual masks a discriminatory motive.” Moll v. Telesector Res. Grp., Inc., 760 F.3d 198, 204 (2d Cir. 2014) (quoting Hollander v. Am. Cyanamid Co., 895 F.2d 80, 84 (2d Cir. 1990)). See Lieberman v. Gant, 630 F.2d 60, 69 (2d Cir. 1980)(“Evidence of general patterns of discrimination by an employer is relevant even in an individual disparate treatment case.”); Carter v. Logan Bus Co., No. 15CIV5217ENVJO, 2016 WL 5231800, at *2 (E.D.N.Y. Sept. 21, 2016) (affirming magistrate judge's order requiring discovery concerning other employees and noting that “[d]efendants seem to confuse pattern-or-practice discrimination claims, which are not at issue in this case, ... with the routine use of circumstantial evidence of a pattern of discrimination to support an individual disparate treatment claim, see Hollander, 895 F.2d at 84-85.”); Sasikumar v. Brooklyn Hosp. Ctr., No. 09 CV 5632, 2011 WL 1642585, at *3 (E.D.N.Y. May 2, 2011) (holding that “courts in this circuit have repeatedly found similar complaints of discrimination by corporate employers to be relevant and discoverable” and granting motion to compel defendant to produce complaints by employees of defendant's nursing department alleging discrimination and/or retaliation based on national origin, race, color or age for the years 2001 to 2005); Culkin v. Pitney Bowes, Inc., 225 F.R.D. 69, 71 (D. Conn. 2004) (“Evidence of general patterns of discrimination by an employer is clearly relevant in an individual disparate treatment case and is therefore discoverable pursuant to Fed. R. Civ. P. 26(b)(1).”)

Huminski v. Stop & Shop Supermarket Co., No. 3:16CV1136(RNC), 2017 WL 2779468, at *2 (D. Conn. June 27, 2017)(Bolding added.)

Bottom line: evidence that points to a pattern of discriminatory treatment of older employees is relevant in an age discrimination claim and is useful in proving that the employer discriminated against the plaintiff employee.

That's pretty much what I said.

Showing that you and other 40+-year-old employees in the same situation were terminated and many <40-year-old employees were not will help you do that.

[pg1067]

Your post doesn't appear to raise any legal issue.

has anyone had any particular experience and/or success in negotiating against a "standard" severance package that is offered by a company?

Yes, although I doubt this is what you actually intended to ask. Keep in mind that an at-will employee will have little or no leverage to negotiate something like this.

I don't know whether or not my situation falls under the realm of any discrimination laws. I am over 40. . . .

I'm not sure what it might mean for a "situation [to] fall[] under the realm of [a] discrimination law," and your post doesn't indicate that any discrimination (much less illegal discrimination) has occurred, is occurring or might occur in the future. If you are fired because you are over 40, you might have a valid claim, but being over 40 doesn't mean you automatically have a valid claim, and your statement that your employer " has been executing consistent RIFs (reductions in force) in small chunks for the past several years" seems to indicate that you possibly getting fired in the future won't have anything to do with your age.