Severance terms are more flexible than the first draft suggests, and several
non-monetary terms are worth more than an extra week of pay.
The release. Its scope should match the consideration. Watch for releases of
claims that cannot lawfully be released — wage claims in some states, workers
compensation, unemployment eligibility, vested benefits — and for covenants not
to sue that extend to agency charges, which cannot bar participation in an
agency proceeding.
Reference and characterization. An agreed reference statement, and agreement
on how the departure is described internally and externally, costs the employer
nothing and matters greatly to the employee.
Benefits. Continuation coverage premiums, pro-rated bonus, treatment of
unvested equity, and the exercise window for vested options — often the largest
number in the package and the one most often left on the table.
Restrictive covenants. Existing covenants can be released, narrowed, or
confirmed. An employer paying severance often has leverage to tighten them; an
employee has leverage to loosen them.
Non-disparagement should be mutual and should define who is bound on the
employer side, since a company can only bind identified individuals.
Statutory periods. Where age claims are released, consideration and
revocation periods apply, and group terminations require disclosure schedules.
Defects void the release as to age claims only.
