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Fired? Don’t go quietly

By Jennie L. Phipps · Bankrate.com
Sunday, September 15, 2013
Posted: 6 am ET

You're a few years away from retirement and you fear that you're about to be laid off or fired from your job -- ruining all your retirement planning. Attorney Larry Bodine, editor-in-chief of Lawyers.com, says, don't go quietly -- "Negotiate."

Bodine believes that an age discrimination claim can be your most powerful bargaining chip. "If you can see any reason that you are being laid off because of your age -- age discrimination starts at age 40, and if workers younger than 40 are being spared -- this gives you leverage. No company wants lawsuits brought by employees."

Bodine acknowledges that actually filing an age discrimination suit is an unrealistic option for many. "If you file a claim, you'll be in court for several years," he says. And the odds of actually winning aren't great. But Bodine thinks that the threat will make many employers nervous enough to ease your separation from the company.

Here are six things he says you can negotiate for and have a reasonably good chance of getting:

Severance. At least a month of pay for every year that you have worked for the company.

Paid COBRA. The federal Consolidated Omnibus Budget Reconciliation Act guarantees that you can buy the health insurance your company offers for a maximum of 18 months. Ask the company to pay for the insurance for the whole 18 months.

Accrued bonus. If you were expecting a bonus at the end of the year, ask for it early.

Unused vacation and personal leave. Get cash instead of days off.

No disputing unemployment insurance. You get to collect unemployment and they agree to tell the state it's deserved.

Mutual goodwill. You promise not to say anything bad about the company or about anyone who works there to professional organizations or on social media if they will return the favor. Insist that the agreement has to be company-wide, even though it's tough for them to guarantee it. That's still more reason for the company to help you leave under the best possible circumstances. "This is especially effective if you are prominent in your industry. Companies hate to terminate people who are leaders in trade associations or who run online discussion groups," Bodine says.

If the company asks you to sign a statement that says that you won't sue, Bodine believes you need to hire a lawyer to review the agreement. You'll need a plaintiff's employment attorney. There aren't an abundance of lawyers with this specialty, "but you can find one if you do your homework," Bodine insists. "Check Lawyers.com."

And whatever you do, no matter how frustrated you are, don't quit. "If you quit, you extinguish all of your rights," Bodine says. "If it comes down to it, make them fire you."

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45 Comments
Plaintiff Employment Lawyer
October 10, 2013 at 4:27 pm

Although the basic premise of this article is true: "If you are fired, see a lawyer," the rest of it is inaccurate, potentially misleading or incompletely presented. Settlement of a claim . . . any claim . . . is based upon the willingness of both employer and employee to agree to a specific sum. That sum is based upon the merits of each individual situation as well as other factors. The settlement sum, as well as other items the author suggests, can be negotiated, but the negotiation outcome will be case specific, not a "one-size fits all" solution.

EddyReady
October 05, 2013 at 11:24 pm

To all the people that wrote comments above,does anyone know where i can find on the internet the state and federal laws concerning the right employees have when getting reprimanded by the company the are working for ! What state and federal law's are they required to go by ! Some of the team leaders at the factory where i work seem to think they can write you up for anything or any reason and you have no say so in the matter what so ever.They are firing and writting people up for talking to each other while working and making you sign a paper everytime you go to the bathroom and when you come back !!! If you do not do this they will write you up :) ! I thought i was living in American,but it's beginning to look like North Korea,all this for $9.50 an hour :( ! Can anyone please help !!!!!

EddyReady
October 05, 2013 at 11:22 pm

To all the people that wrote comments above,does anyone know where i can find on the internet the state and federal laws concerning the right employees have when getting reprimanded by the company the are working for ! What state and federal law's are they required to go by ! Some of the team leaders at the factory where i work seem to think they can write you up for anything or any reason and you have no say so in the matter what so ever.They are firing and writting people up for talking to each other while working and making you sign a paper everytime you go to the bathroom and when you come back !!! If you do not do this they will write you up :) ! I thought i was living in American,but it's beginning to look like North Korea,all this for $9.50 and hour :( ! Can anyone please help !!!!!

Experienced worker
October 03, 2013 at 8:47 pm

My advise is to start a log file. It doesn't need to be fancy or even grammatically correct. Just a log of when you are not given direction, cancelled 1 on 1's etc.... If you walk in to HR with a file folder saying youve kept a log of things and that you d be happy to review it with them late if they would like you will find the situation much more open to making it easy to get you out the door. i.e youll get the things on the list.
Never threaten and never reveal. Just walk in with a folder of blank paper if you have to.

John Tate
October 02, 2013 at 4:48 pm

I find it amusing that an article aimed at older workers is written in a font so small they can't read it!

Labored
October 02, 2013 at 8:50 am

At-will employment is the default in U.S. labor law. This article highlights the legal right employers have to fire an employee for a good reason, bad reason, or no reason at all as long as certain legal protections are not violated. When they are, the employee needs to consult an attorney. But when wage earners unite to bring meaningful democracy into the workplace, they work with their employers to up levels of fairness and justice. Unions negotiate contracts with "just cause"clauses. These clauses give put the burden of proof that any employee discipline must be for good and sufficient reason. This brings a certain peace of mind, that is ABSENT in at-will employment.

Alex Katzman
October 01, 2013 at 7:24 pm

This author clearly is not a lawyer. The difference between an employee with a valid age discrimination claim (ie: with evidence to back it up such as being replaced by an inexperienced younger employee) and an employee without evidence of discrimination is like night and day. This one-size-fits-all advice (such as 'these cases take years to resolve' and they have 'low odds of winning')is worth what you pay for it. An employee that suspects they are targeted because of age should seek out a competent lawyer and not rely on articles like this one.

Jeff
October 01, 2013 at 12:53 am

This article raises false & unrealistic hopes - you can't negotiate an involuntary termination situations for reasons such as "Job Requirements Not Met" or "Misconduct" situations. Employers who fail to apply consistent business practices face the consequences of wrongful termination or discriminatory practice charges. I do agree with the advice of telling the employee not to quit. Doing so virtually eliminates the opportunity for unemployment benefits.

PiPatel
September 24, 2013 at 9:03 pm

Yet another reason to start your own business, even if it's selling sandwiches.

Jones
September 21, 2013 at 11:44 pm

Hello, I whole heartily agree with this article, NOW is the time to dig all those skeletons out of the closet and wave a few in front of the Company negotiator. The social media is your friend, all the things written in the article are not only valid but also good business sense. UNLESS you committed PROVEN misconduct,then Lawyer-UP. However some company's will not "spare the rod" because the are very vindictive, so be careful. Good luck in your new endeavors. Jones

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