So you’ve just been let go…
FEB 6, 2019 | COWORKER.ORG
If you’ve been asked to resign, were recently laid off, or were fired, chances are you’re not exactly feeling like you’re leaving your job on your own terms. As an organization dedicated to empowering employees, we’re sorry to hear that.
Whatever the reason you’re leaving your job, your first task is to figure out the best setup for yourself, and perhaps other affected colleagues, moving forward. We hope this guide will help you make informed decisions about what to do next, based on your particular situation and priorities.
First, what happened?
- Your employer asked you to resign, or tried to force you to resign, or “offered” you a resignation instead of being fired.
- You were laid off individually, or your position got cut.
- You were part of a group of employees who were laid off.
- You were fired for cause.
- Your company is closing and all employees are losing their jobs.
Now, let’s determine your priorities.
- To negotiate the best severance package (salary, & benefits extension, etc.) either individually or as a group.
- To be able to file for unemployment.
- To receive a positive reference.
- To be able to file a wrongful termination suit, individually or collectively.
- To seek accountability and draw attention to injustice.
Below you’ll find options for your situation and priorities. While this is not legal advice, we hope this can help you get started on navigating this difficult situation.
Start with a clear picture of how the company is officially communicating your reason for termination, as there are several options. If you’re not sure, ask, since this affects your eligibility for unemployment and more. You’ll also want to review your original contract for clauses that could affect your future positions and resources available to you. If you no longer have a copy, you can ask HR or your hiring manager for a copy.
Okay, let’s get started, by priority:
Your priority is a severance package.
Individual Severance
Federal laws require your employer to pay owed time worked. Some state laws require being paid for accrued paid time off (PTO). Your employer is not legally required to offer you any severance in terms of additional pay or extended healthcare coverage. However, you can still negotiate a severance, including an extension of pay, health and other benefits, and how your departure will be communicated to your colleagues and future employers.
Regarding stock options, termination “for cause” usually cancels both vested and unvested options that have not been exercised. See below for other types of terminations. If you have exercised your options for vested stocks, you own those shares and your employer has no control over them.
You will likely be asked to accept a severance package in exchange for giving up your right to litigate any potential claims you may have against the company, both individually and as a group. You’ll also usually sign away your right to speak publicly about the reason(s) and details of the resignation. Watch out here for non-compete clauses. Remember, you can request more
time to discuss the offer with your family or a lawyer.
Group severance
Workers have had success in collectively negotiating severance pay, even when they initially have not been offered it, and even when workplaces are closing. These efforts require sustained coordination with your affected colleagues, and at times public pressure — but it does happen. If you’re covered by the WARN Act, which requires employers with 100+ employees to provide 60 calendar days of advance notice of closings and mass layoffs, did your employer follow it? If not, you and your coworkers may be able to seek damages for back pay and benefits for up to 60 days, depending on how many days’ notice you received.
If you’ve been laid off in a restructuring, you may have a grace period to exercise any vested stock options. If you are being laid off close to a vesting milestone, you may be able to negotiate for a later end date.
Contact Coworker.org for information or assistance with collectively demanding a fair severance for everyone affected by a layoff or closure.
Your priority is to receive unemployment.
State laws determine who qualifies for unemployment, and their laws vary substantially. But many have eligibility requirements including: being out of work through no fault of your own (not terminated “for cause”), be able to work, and meet requirements for minimum earnings or length of time worked.
Sometimes employers offer workers they’re terminating an option to resign so the employers don’t have to pay increased unemployment insurance premiums or announce layoffs. If your priority is to be able to receive unemployment, put in writing that you have no intention of quitting; be sure to bcc your personal email so you have a record.
Sample letter:
I was very surprised and saddened to be terminated on [date]. While our team has experienced its share of challenges, I have been fully committed to working here for the past [length of your employment]. I want to make it clear that I am not quitting and did not resign.
When is a good time to discuss my severance?
Thank you for the opportunity to work together.
You can ask how your employers will refer to your termination when speaking to the state unemployment office. You can ask the company to agree to not fight your unemployment application. If your former employer refutes your unemployment claim, each state unemployment office has an appeals process.
Your priority is a positive reference.
If you’re being asked to leave, it’s unlikely that your manager or HR will give you a glowing reference even if you maintain that the termination was unjust. However, due to liability concerns, employers often will only verify dates of employment and titles, rather than offer official references.
Still, people talk informally. If a positive reference or the ability to frame your departure on your terms is a priority, you may want to consider an offer to resign. However, this means you will probably not be eligible for unemployment, depending on the laws of your state.
In some instances, you may be able to negotiate a positive letter of reference that both parties agree to in your severance package.
No matter what you decide, chances are that you’ll be better off asking a trusted colleague for a reference, rather than your direct manager. Make your request using personal email addresses.
Your priority is to file a lawsuit.
If you believe you were retaliated against for speaking up about discrimination, harassment, or working conditions, contact Coworker.org before you sign a severance agreement that gives up your civil right to litigate as an individual or group.
You’ll also need to determine if you’re bound by an arbitration agreement, which is usually located in the employment contract you signed when you were hired.
You will need to be able to document your allegations, so if you’re still able to take photographs or send relevant items to your personal email account, do that. Trusted colleagues may also be helpful here. Contact Coworker.org for assistance or referrals to employment attorneys who specialize in your issue.
Please refer to the next section for other types of filings available to you.
Your priority is corporate accountability.
Before you sign an agreement giving up your right to speak about this issue publicly, contact Coworker.org to learn more about collective strategies such as petitions or speaking with trusted journalists, especially if others at your job are upset about the issues that led to your departure.
If you believe you were discriminated against, experienced sexual harassment, or that this was retaliation for speaking up about workplace issues, contact Coworker.org for information about federal, state, and municipal agencies that may be able to investigate on your behalf, like the EEOC or NLRB. Be aware that there can be strict time limits for filing with some agencies, and you will need to provide documentation. It can be useful to retain legal assistance with administrative filings.
Even if you signed an arbitration agreement when you were hired, you are not prevented from these types of administrative filings.
Note that the contents of this guide are intended to convey general information only and not to provide legal advice or opinions. Contact Coworker.org for employee-side employment attorney referrals.
Coworker.org is a global platform to advance change in the workplace. Our platform makes it easy for individuals or groups of employees to launch, join, and win campaigns to improve their jobs and workplaces. You can start your own campaign about changes you want to see in your workplace here at Coworker.org, or contact us at [email protected] if you would like to discuss a workplace issue with our team.
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