An employer conducting more than an isolated termination should design the severance program before making selections.

Consistency. A formula based on objective factors — service, level, compensation — applied uniformly. Ad hoc negotiation invites comparison claims and discrimination arguments.

Benefit plan status. A severance arrangement requiring ongoing administrative discretion may constitute an employee benefit plan subject to federal plan rules, which brings reporting, claims procedures and, importantly, federal preemption of state law claims and a deferential standard of review. Structuring the program as a plan is often advantageous, and doing so requires a written document and summary description.

Releases. Consideration beyond what is already owed. Statutory formalities for age claims, including the extended consideration and revocation periods and, for group terminations, disclosure of the decisional unit with job titles and ages.

Carve-outs. Rights that cannot be released — agency charges, workers compensation, unemployment, vested benefits, and protected communications with regulators — should be stated to keep the release enforceable.

Confidentiality and non-disparagement drafted with awareness of restrictions on such terms in severance agreements.

Notice statutes. Assess mass layoff notice thresholds before finalizing the list, since the count determines whether sixty days of notice is required.