Do I sign the severance agreement? Do I negotiate? Hire a lawyer to send a threatening letter?

Full vitae severance agreement

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By Phyllis Brust 

One August day, my new boss invited me to a "one-on-one" meeting at 4 p.m. At 3:45 p.m., I was tipped off that I was about to be laid off and my job eliminated as director of a faculty career-counseling program.

Financial problems at my major research university had been reported in the press. Roughly 100 employees had already been laid off that year, and the institution was facing further budget cuts. A rating agency had cited "significant employee-benefit liabilities." We all knew more layoffs might happen. But until that day, I’d hoped I wouldn’t be on the list.

Paradoxically, a month earlier, the university had raised its contribution to staff pensions, with an even higher increase for older workers. At 62, with 16 years of service, I was part of that group. At the time, the university said it was changing the way it managed our pensions and passing on the savings to us. But the rumor mill suggested that the measure was an effort to stop an employee exodus to our nearby competitor, another top research university.

At 4 p.m., I walked into my boss’s office to find that the meeting would be two-on-one. She introduced me to a lawyer from the university’s HR department, who bore an uncanny resemblance to Bert from Sesame Street.

She told me I was being laid off for financial reasons, not for performance. Then Bert took over. My last day would be September 30. I was given a six-page letter marked "Via In-Person Delivery" that offered me a severance amount corresponding to nine weeks of employment, representing nine years of work, even though I’d been at the university for 16 years (I had worked there since 1998 in various positions, though I left for two years in 2004-6). The offer also subsidized part of the expensive postemployment Cobra medical-insurance payments for three months.

To accept the severance, I had to release the institution from causes of action "from the beginning of time" and sign a confidentiality clause promising not to "disparage" the university.

Thanks to my years of counseling academics on their careers, I was savvy enough to know that I could negotiate in this situation. I was less than a year from being eligible for the university’s retiree medical plan, so I asked to be granted eligibility. I also asked for 16 months of severance to reflect my 16 years on the campus. Bert’s response was that there was no precedent to offer me a higher severance. (I later learned that wasn’t accurate.) He was terse. I found him to be aggressive and adversarial in our subsequent dealings.

Like many people who choose to work in academe, I had accepted a trade-offof lower pay for excellent benefits and a vibrant work environment. I had been the institution’s first director of a program to help dual-career couples as a way to recruit and retain faculty members. I had helped persuade faculty-job candidates and their families that the university was a caring place. The irony was not lost on me.

A colleague who was laid off at 3:30 p.m. from a different campus office said it was like wearing a scarlet letter. It felt like shunning. I was expected to do my job for 30 more days, but my boss no longer asked for information — not even about new, high-level faculty recruits with whom I was still entrusted to work.

A lawyer-friend summarized my situation: The university had eliminated my job but not my job responsibilities, which were given to someone 20 years younger than me. That could be a case for age discrimination, my lawyer-friend said. (Not long after I left, the person who took over my old duties opted to take a new job at the nearby research university.)

In the days that followed, I asked myself a lot of questions: Do I sign the severance agreement? Do I negotiate? Hire a lawyer to send a threatening letter? File a discrimination complaint?

I looked around for advice on this front. Of course, those of you on campuses with union protection should first contact your union representative and read your contract. I was in a management position and, like most managers, was unprotected — an at-will, exempt, nonunion employee. So I was on my own. Here, then, are my suggestions for those in academe who find themselves unexpectedly out of a job.

Negotiate — you have nothing to lose. Someone who was laid off by the university earlier in the year negotiated an increased severance payment, based on inside knowledge of what other terminated employees were getting. Do a little digging on your own and then ask for what you want. What are they going to do? Fire you?

Read the severance letter and note every deadline. You have no margin for error. Keep track of important dates — like when your unemployment checks start and end, or when your health coverage runs out.

Pay attention to the less obvious dates. In my case, the Older Workers Benefits Protection Act required that I be given 45 days to sign the severance agreement. That’s because I was one of two people aged 40 or over who were laid off that day from the provost’s office. Under the law, if only one person over 40 had been laid off, I would have had just 21 days to decide whether or not to sign the agreement. The act also requires your employer to supply those over 40 with the ages and titles of people who were selected — and not selected — for layoffs.

Document, document, document. Keep records of your pertinent meetings and interactions. You will be losing your work email address. Print out emails you want to keep copies of.

Determine what you want to take with you from your office — within the terms of the severance agreement. Long ago, I vowed never to bring more than a box of personal belongings to any job, so I didn’t have much to pack. A colleague who got laid off had furniture to move — the downside of personalizing an office that doesn’t belong to you.

Be kind to yourself. It’s not your fault the university is downsizing, so don’t blame yourself. Grieve, but also start looking for a way to move forward. In my last month on the job, I saw three plays, caught up with friends, visited campus sites I’d always meant to see, and read everything I could on the topic of layoffs. My colleague used her final days on the job to network, apply for jobs, and get in shape. She lost 25 pounds.

Acknowledge the truth. The university wants you gone. What you see as unfair, your employer sees as a bottom-line decision. It doesn’t matter how devoted or effective you were. Earlier in the year, my university laid off a staff member who had been there for 22 years and was described as beloved by generations of grad students and scholars.

Get support. And cherish those who care. A laid-off colleague and I called ourselves "The Team" and kept each other’s spirits up. Other laid-off employees found us. I edited their résumés and cover letters, and we sent one another job ads.

The university provided us with no job-counseling support officially. But assistance came from other quarters. An academic dean I didn’t know offered his help. Colleagues sent me word of job openings, contacts, and kind words as well as blunt messages about what they honestly thought about the university. My boss complained that my well-wishers were clogging her inbox and asked me to rectify that.

Information is power. Read your institution’s policy manual on layoffs. Get everything you are entitled to. I downloaded the university’s own guidelines for laying off employees to hold it accountable as much as possible.

Read the news to see what is being reported about layoffs in academe and at your institution in particular. Learn as much as you can about layoff and discrimination laws. Is the severance agreement you’re being offered in compliance with state and federal policies?

Visit EEOC.gov if you think you might have been discriminated against on the basis of "race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information." In general, you have 180 days to file a claim, extended to 300 days depending on state and local enforcement. If your institution is a federal contractor, you can also file a complaint about discrimination (except for age) with the U.S. Office of Federal Contract Compliance Programs. Many law firms also offer helpful articles about different types of discrimination on their websites.

Across the internet, a wealth of information is at your fingertips about layoffs, wrongful termination, severance agreements, discrimination, and best practices. For example, the AARP has a helpful overview (applicable for all ages) on negotiating "a killer severance." It also has resources on age discrimination. I contacted a lawyer at the AARP and had my questions answered even thought I’m not a member.

Talk with lots of people. Talk with lawyers. Talk with other folks who’ve been laid off. Talk with colleagues who may have insider knowledge.

You may decide not to hire a lawyer (I didn’t), but you’ll learn a lot from the conversations. Most lawyers will describe their legal strategy before you sign on. Not all of them wanted my case, because I wasn’t asking for much money, but they were generous with their time. One lawyer advised me to be loud and use whatever dirt I had on the university as a Plan B. Two other lawyers said I could easily negotiate for myself and file an EEOC claim.

You have to prove a discrimination claim, no matter how evident it may be to you. Be objective. I found the Chicago office of the EEOC to be surprisingly helpful. The EEOC experts will tell you if you have a good case and be honest about it if you don’t.

Plan your own departure as much as you can. In the goodbye note I wrote to my colleagues, I was determined to acknowledge my layoff directly and omit euphemisms like "awaiting the next challenge."

If you are given time and don’t need to leave immediately, try to enjoy those last days on the job. Have lunch with friends, take walks, visit the campus museum. Network and conduct informational interviews. Seek references. Again, what are they going to do? Fire you?

To sign or not to sign? To sue or not to sue? Decide your course of action by calculating the strength of your case as well as the financial cost of fighting your employer.

In my case, a university lawyer I had worked with on faculty-partner issues strongly recommended that I meet again with Bert, so I did. Bert invited me to submit a counteroffer. I asked to be paid more severance to cover financial hardships (including the cost of Cobra) and to be included in the retiree medical plan. A severance is taxable, so I requested a specific amount I hoped to receive after taxes. I also proposed what I called an "honesty clause" (allowing me to talk and write about my layoff and severance if what I said was true) — to replace the university’s confidentiality clause (which limited me to administrative or legal proceedings in talking about my case.

In response, the university granted me additional severance, but significantly less than I had requested. It declined to include me in the retire medical plan and nixed my honesty clause. I had really thought the institution would be understanding and would grant my requests. I’m not wealthy, but I couldn’t sign that severance agreement, so in the end I received nothing. I can’t judge who should be laid off and/or whether a lawyer could have gotten me a better settlement. Age discrimination is hard and expensive to prove, so I opted not to pursue a legal claim, either.

I’m a career counselor and can advise others and institutions, and I can write about my own experience at the university with no confidentiality clause to constrain me. I get a twinge every time I pay my bills, but I think I did the right thing for me.

Phyllis Brust was the dual-career director at the University of Chicago until her layoff in 2016. She is now a consultant doing writing and career counseling with individual clients.

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