1. Will My Employer Revoke My Severance If I ask for More?

Answer: Not likely so long as you ask nicely and make reasonable requests. The company has offered severance because it wants to keep things as smooth as possible and a polite request should not jeopardize the offer. In fact, in the ten years that I have been representing employees, I have never heard of anyone losing their severance agreement simply because they asked the company to increase or modify the severance offer.

2. Do I have a legal right to get a severance package if I am laid-off?

Answer: No. The only people who have a legal right to severance payments are top executives who have written employment contracts. That is why you hear about the big shots leaving with golden parachutes. But most everyone else is an employee-at-will and sadly there is no legal requirement for severance. Severance payments are usually voluntary.

3. Can I sue for wrongful termination because my company had no reason to fire me?

Answer: Not likely. Most everyone is an employee-at-will and that means exactly what it says. You can quit for any reason and likewise your employer can fire you for any reason. Basically, you have no right to your job. It can be taken away anytime for any reason. The only real limits are the laws that prohibit discrimination, illegal harassment and certain narrow types of retaliation.
There are other laws that limit an employer’s ability to fire employees such as the Family Medical Leave Act. A few fortunate employees out there have written employment contracts that give them more protection but those are rare. Most everyone is an employee-at-will.

4. I am worried that I might get laid-off, what should I do now to protect myself?

Answer: A. The best thing you can possibly do to protect yourself has nothing to do with the law. You need to make yourself valuable so that you can easily get another job. Start networking, update your resume, keep your eye-out for other jobs, and acquire the skills that companies need.
B. Prepare to be fired by bringing everything that you might need in the future out of your office and take it home. [Don’t take anything that is not yours.] If you are fired, you might be led out of your office by security and you may never see that list of key professional contacts again.
C. If you think you are being discriminated against and have evidence of discrimination then make a copy and take it home. For example, if you are in your 50’s or 60’s and things are being reshuffled in favor of younger employees, you might want to keep track of how things looked before and after the shuffle because that might help prove age bias.

5. How Can I Tell if my Severance Package is Fair?

Answer: There is no magic severance formula or legal severance requirement. There are ratios that some companies follow but those have changed and they cannot be relied upon these days. The ratios vary anywhere from one month of severance for each year of service down to one week of severance for each year. Usually the higher up you are in the company the more you will get. Lower level workers will get one week per year while a top executive might get one month per year. But this is an old idea that really is not followed with any regularity today. Some companies still do follow similar formulas and many do not. There are no laws that govern the amount of severance paid to terminated-employees so companies are largely free to offer any amount they want so long as they do not discriminate. Also, a large factor is the financial health of the company, so today many companies are offering less severance pay.

The federal trial judge threw her case out of court, but the relentless Ms. Chadwick appealed. She found a sympathetic audience with the Court of Appeals and they reversed that pesky trial judge and reinstated her case. Here is what the Court of Appeals said:

"Unlawful sex discrimination occurs when an employer takes an adverse job action on the assumption that a woman, because she is a woman, will neglect her job responsibilities in favor of her presumed childcare responsibilities. ... [A]n employer is not free to assume that a woman, because she is a woman, will necessarily be a poor worker because of family responsibilities. The essence of Title VII in this context is that women have the right to prove their mettle in the work arena without the burden of stereotypes regarding whether they can fulfill their responsibilities."

In Ms. Chadwick’s case, the company made a few telling comments. For example, when she asked why she did not get the promotion, she was told, "It was nothing you did or didn't do. It was just that you're going to school, you have the kids and you just have a lot on your plate right now." And during an interview the promotion, one of the interviewers said, "Oh my -- I did not know you had triplets. Bless you!" This decision in favor of Ms. Chadwick is a great victory and this decision can be used by other working moms who suffer employment discrimination.

1. No Reason Given for your Termination

If a company fires someone, they will have a good reason for it. If your company is honest with you they will tell you the reason. In fact, a good company will have given you advance notice of the reason. But if your company does not give you a reason for your termination, then you should be suspicious. Let me give you a real life example. I have a 14 year-old son and he normally gets home from school at 3 p.m. On day, he showed up at 2 p.m. and I asked him why he was home early. He said, “no reason.” Well that smelled funny and further investigation revealed that he got in trouble at school and was sent home early. My son tried to pull a fast one. Some companies are just like teenagers who think they know it all and they try to pull fast ones too. Don’t believe it if it happens to you. Inquire further and if you don’t get a straight answer, think about calling a reputable employment lawyer because you might have a case

2. Bogus Reason Given for your Termination

The next tell tale sign of underhanded conduct is the bogus reason for termination. Sometimes companies try to put employees on the defensive by making false accusations of poor performance. It is a pretty good technique and it probably prevents a lot of lawsuits. But don’t fall for it. If you are doing your job and get fired for reasons that are plainly false, then your company might be trying to hide an illegal reason for terminating you.

3. Termination after Good Evaluation

If you are fired for alleged poor performance and you also have a history of positive performance evaluations, then you might have a case. The companies allegations of poor performance will be contradicted by it’s own evaluations. A termination under these circumstances looks suspicious.

4. The Company Violated its own Policies

Some companies create detailed termination policies and procedures. Many mangers do not know how to follow their own rules and often violate the policies. Check your company’s policy manual. If they did not follow their own rules, then that also looks suspicious.

It comes down to honesty and candor. Good companies are honest and they will not hesitate to provide the real reason for terminating an employee. But if a company tries to cover it up, then it creates problems for everyone. The ironic thing here is that a company is free to fire its employees and it does not even need good cause. Most all employees can be fired at the will of the company. So employers simply need to be honest when they fire people.

Implications of the Ledbetter Act

The Ledbetter Act exposes employers to pay discrimination liability for alleged discriminatory decisions, even though they may have been made years earlier, based on whether they have continuing impact on an employee's compensation. Furthermore, applying to claims of pay discrimination under Title VII, the ADA, the Rehabilitation Act, and the ADEA, the Act is not limited to claims based on gender discrimination, but also applies to pay discrimination based on race, national origin, religion, age, and disability.

The broad language of the Ledbetter Act also expands the potential pool of plaintiffs in several other respects. The Act re-triggers the limitations period with each paycheck, and whenever "benefits" or "other compensation" are paid. These terms arguably include the full gamut of entitlements that an employer's discriminatory decision could impact, including health benefits, paid leave, bonuses, stock options, and pension payments, though the Act clarifies that it will not allow employees to rely on post-retirement pension payments to stretch the limitations period beyond the end of the employment relationship. Specifically, the Act is not intended to "change current law treatment of when pension distributions are considered paid." This language preserves the rule that "pension distributions are considered paid upon entering retirement and not upon the issuance of each annuity check." See H.R. Rep. No. 110-237, at 18 (2007), citing Florida v. Long, 487 U.S. 223, 239 (1988); Maki v. Allete, Inc., 383 F.3d 740, 744 (8th Cir. 2004).

The Act also prohibits discriminatory compensation decisions as well as "other practices" that affect compensation. This language suggests that any practice that affects compensation-not just discreet decisions-may trigger a claim. Senator Arlen Specter proposed an amendment to the Act that would have stricken the "other practices" language, arguing it would "promote an enormous amount of litigation as to whether 'other practices' included such items as promotion, hiring, firing, training, tenure, [or] demotion." 155 Cong. Rec. S755 (daily ed. Jan. 22, 2009) (statement of Sen. Specter). Senator Barbara Mikulski, who sponsored the Senate bill, rejected Senator Specter's amendment because it did not cover "job evaluations," "classifications" and other "personnel actions that still result in discriminatory wages." 155 Cong. Rec. S758 (daily ed. Jan. 22, 2009) (statement of Sen. Mikulski, in effect confirming that the Act is intended to include a wide variety of practices.

The Ledbetter Act does not alter the limit on recovery of back pay to a maximum of two years preceding the filing of a discrimination charge under Title VII. Furthermore, the Act does not prevent an employer from asserting that an employee's claim is time-barred under the equitable doctrines of waiver, estoppel, or laches. 155 Cong. Rec. S754 (daily ed. Jan. 22, 2009) (statement of Sen. Mikulski).

Employer Perspective

Employers should ensure they have policies and procedures in place for documenting the reasons for their compensation decisions and retaining those documents and the data supporting the pay decisions they make. While retaining data can become quite burdensome and expensive over time, technology vendors are increasingly offering viable solutions, and the benefits may prove to outweigh the costs if litigation arises long after decisions are made. Employers should weigh these considerations in making compensation decisions and assessing their retention policies and programs.

Employee Perspective

The Ledbetter fix restores common sense to litigating claims involving compensation discrimination. Pay discrimination is an on-going and cumulative injury. Its harms do not become stale simply because the genesis for the discrimination occurred more than 180 or 300 days before the plaintiff filed an EEOC charge. The Ledbetter fix appropriately allows plaintiffs who are presently affected by compensation discrimination to redress that wrong, while limiting employer liability for back pay to the two years preceding the filing of the charge.

He does most of his work from his home in Florida and not in the hallowed halls of the U.S. Supreme Court in Washington. He goes to Washington when necessary to hear arguments, but other than that he works from home with a computer and telephone. Chuck Newton's blog about 3rd Wave Lawyers covers this story well.

In my view, law firms would do well to promote telecommuting. At The Ottinger Firm we encourage it and some of our lawyers rarely come to the office. This policy allows our firm to attract some very talented lawyers who want the freedom and good lifestyle.

Many companies consider the following factors when creating a severance package for a departing executive. Each case is unique and there may be other factors at play in your situation.

1. SMOOTH TRANSITION - Company’s want to focus on their business and not get distracted by employment disputes. Severance packages are provided to facilitate a smooth transition and avoid disputes. There is no legal requirement to provide a severance package.

2. REASON FOR THE DISMISSAL – If the termination is the result of an economic slow down, reorganization or other circumstance beyond the executive’s control, the severance package may be more generous. If the dismissal is the result of poor or marginal performance, the package will be minimal or non-existent.

3. AGE - Older and more senior executives often require more time to find a comparable position. Therefore some companies provide a slightly larger severance payment for older executives. Also, larger severance offers are sometimes designed to deter age discrimination suits.

4. FAMILY - There was a time when an executive’s family situation would be considered. If an executive had a large dependent family, some companies would factor that into the severance calculation.

5. POSITION - Companies feel a greater obligation to offer generous severance packages to executives holding high level positions.

6. SENIORITY - Most severance packages are based on a formula that credits the executive for their years of service. The amount of the severance package is often directly linked to the number of years that the executive worked for the company.

7. FINANCIAL HEALTH OF THE COMPANY – There is no hard and fast rule here. Sometimes the largest and healthiest companies are the most stingy – [that is why they are rich]. Some smaller and less profitable companies, on the other hand, will provide very generous severance packages. However, large and established companies tend to provide better severance packages.

8. LEVERAGE - The key to obtaining an excellent severance package is leverage. If the executive has strong contacts or relationships that are valuable to the company, the company may offer a large severance package to preserve a strong relationship with the executive. Also, if the executive has information that is valuable to the company or which could be harmful if released to the public, the company will pay a premium for confidentiality. Finally, if the company discriminated against the executive or otherwise violated their rights, the company may enhance the severance package to avoid litigation.

“Employment discrimination against a woman who has, or will have, children. The term has been popularized by members of MomsRising, an advocacy group promoting the rights of mothers in the workplace.” If you feel that you have been discriminated based on the above, you should contact an attorney.

This new phrase is sure to become more commonly used in the years to come as more and more women feel discriminated against. Hopefully, there will be adequate legislation enacted to address this problem.

The workplace impacts of maternal profiling are jaw dropping, especially given that three-quarters of American mothers are now in the workforce and 82% of women become mothers by the time they are 44 years old. In fact, the American Journal of Sociology recently reported a study which found that mothers are 79% less likely to be hired than non-mothers with equal resumes and job experiences.

Mothers also face steep wage hits and unequal wages for equal work. One study found that women without children make 90 cents to a man’s dollar, but women with children make only 73 cents to a man’s dollar. And single mothers make about 60 cents to a man’s dollar.

Even in well-paid positions, mothers face discrimination. A Cornell University study found that mothers were offered $11,000 less in starting pay than non-mothers with the same resumes and job experience, while fathers were offered $6,000 more in starting pay.

That same study also found that mothers were held to harsher work standards than non-mothers and were taken off the management track for reasons that were not justifiable when compared to the behavior of other workers.

The United States lags far behind other countries when it comes to supporting families. For instance, Harvard researchers studied over 170 countries and found that the United States was one of only four nations without some form of national paid leave for new mothers. (The others were Liberia, Papua New Guinea and Swaziland.)

Unfortunately, so far only one state in our nation, California, provides for paid parental leave though Washington State will follow soon. The lack of paid family leave often causes parents to either quit much-needed jobs to care for their newborn (and thus lose their job-linked healthcare coverage), or else the financial hardship of living without paid leave drives women back to work earlier than they would have chosen. Yet when parents return to work, they face a chaotic and costly childcare system where the cost of care for two children can easily be upwards of $20,000 per year.

1. Failing to establish an effective sexual harassment policy. Recent Supreme Court decisions hold employers liable for their supervisors' actions unless complaining employees fail to take advantage of company complaint procedures. In light of these rulings, implementing policies and procedures for dealing with sexual harassment is more important than ever. It is also essential that supervisors be trained on these policies and procedures. Finally, an employer must act in a timely manner to investigate all sexual harassment complaints that are brought to its attention.

2. Failing to pay overtime to nonexempt employees. Many employers pay employees a salary regardless of the number of hours they work and whether they are subject to the wage and hour laws. Unless they are exempt as administrative, executive or professional employees, you must pay them time-and-a-half their regular hourly pay for all hours worked in excess of 40 per week. When in doubt about whether an employee is exempt, pay him or her hourly wages. This will avoid having to pay back wages if you're audited by the Department of Labor's Wage and Hour Division.

3. Failing to take and document disciplinary actions. Supervisors, not wanting to be perceived as villains, hate to write up employees. Then, when the company can no longer tolerate unsatisfactory performances, the files do not document the poor records and you have no grounds on which to justify discharges. This leaves you open to lawsuits alleging discrimination. Employees who have been discharged for poor performance often have glowing evaluations in their files. This can expose you to lawsuits.

4. Failing to quickly discharge poor performers. Employers are advised to progressively discipline employees and to give one warning too many rather than one too few. But often a time comes when failure to act is as bad as overreacting. If you have retained employees for many years despite poor attendance records, multiple infractions and even several ``final'' warnings in their files, you are asking for trouble. These employees are most likely to sue when finally discharged. The best course is to discharge a poor performer as soon as prudently feasible. The more seniority an employee has, the harder to justify discharging him or her.

5. You must be sure that laying off a group of employees has no disparate impact on any protected group. To avoid lawsuits, verify that the group doesn't contain a disproportionately high percentage of age-protected employees or employees of a particular ethnic or racial group or sex compared to the rest of the work force. The decision of who will be laid off should be based on objective criteria, such as qualifications, experience, and ability to perform certain work essential to the company. If the decision to lay off one employee as opposed to another is based on such criteria, make sure the file supports this decision.

6. Failing to get a signed release from a terminated employee. As an employer, you may have a legitimate reason for terminating an employee. However, you fear a lawsuit if the employee is a member of a protected class. Many employers are reluctant to use releases because they fear the release may educate the employee about rights and litigation possibilities of which he might otherwise be unaware. But this may be a case of sticking your head in the sand. In light of media attention given to employment discrimination verdicts, employers should not rely on a hope that workers do not know their rights. The right approach to avoid litigation often is to get signed releases from departing employees, particularly if any severance or separation pay is provided to the employees.

7. Conditioning employment offers on medical exams. The Americans With Disabilities Act (ADA) bars employers from asking applicants about their disabilities or requiring medical exams before offering employment. You can ask applicants to take job-relevant medical exams only after offering jobs. The burden is on you to establish the medical exam's relevance to job requirements. In addition, employers often fail to accommodate their employees' disabilities after they are hired. The ADA requires employees to reasonably accommodate their employees' disabilities.

The suit was settled Monday when U.S. District Judge Rudolph Randa signed a consent decree, the news service reported. The U.S. Equal Employment Opportunity Commission had accused the Minneapolis-based retail giant Target (NYSE: TGT) of violating the Civil Rights Act of 1964 when it did not hire four black applicants in Milwaukee and Madison, then destroyed their applications in bad faith. The suit alleged that it did not keep documents as required under the law.

Under terms of the settlement, the AP said that Target would pay a total of $510,000 to four applicants that were denied jobs as assistant store managers in 2000 and 2001.

Target also agreed to revise its policies for retaining documents, and pledged to provide supervisors with training on employment discrimination and record-keeping, to report on its hiring decisions and to post a notice about the decree for employees in its stores and offices in the affected district.

The AP quoted Target as saying in a statement that "We do not believe that any member of Target engaged in discrimination. Target prohibits and does not tolerate discrimination based upon race or any other characteristic protected by law."

Previously, Randa had dismissed the case, but that decision was reversed in 2006 when the 7th Circuit Court of Appeals in Chicago ruled that enough evidence was presented for the case to go to trial.

Target said it chose to settle the case because all claims of discrimination were dismissed except for those of the four applicants who alleged they were denied interviews.

Law firms are information managers. They dig around for information and put it together to tell a story. The law firm that knows the facts and tells a compelling story will probably win. Organization and focus are vital.

At our law firm, we have a system for organizing case information and case management. It is simple. The information that we collect is stored in 4 documents: (1) Case Chronology, (2) Hot Documents Chronology, (3) Cast of Characters List and (4) The Tough Questions and Best Answers Memo. Another key document is the Task Assignment Memo.

Each case is centered on a weekly case management meeting. For example, the Jones case revolves around a meeting held every Tuesday at 9:00 a.m. Each case is staffed by a trial team that consists of two lawyers and a paralegal. These people and the client all participate in the case meeting in person or by phone. Prior to the meeting, the 4 documents listed above and the task assignment memo are emailed to everyone and reviewed in advance. The pending tasks are reviewed and new tasks are assigned with due dates. It is an open system so that everyone, including the client, knows what is going on. This process helps us manage the information efficiently and keeps our focus on developing a winning story for our clients. It is also keeps our clients informed and makes them part of the process.

Look at her - she does not want him to touch her and he does not get it. What should you do if your boss touches you inappropriately at work? First, tell him to stop. If he continues, check the employee manual and follow the sexual harassment complaint procedure and report it in writing. If the company does not help you, then you need the help of someone outside of the company like an employment lawyer or the Equal Employment Opportunity Commission.

Do not hold back when you report it- be honest and tell the whole story even if it is embarrassing or crude. The company needs to know. You should put the complaint in writing and ideally you should see an employment lawyer so they can help you draft the complaint. Many companies will take action and stop the harassment. But if they don't stop it, then you can take legal action. But - if you do not initially follow the company’s sexual harassment complaint procedure, you may not be able to take legal action. The point is that you need to give the company a chance to fix the problem first.