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Fired? Don’t go quietly

By Jennie L. Phipps ·
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, 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"

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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deborah jordan
November 03, 2013 at 2:04 am

AFTER A 29 year career in nursing,I was fired because of a complaint from a family member claiming that their mother claimed that I made a derogatory statement to their mother.Their mother died three days after I last took care of her.The statement NEVER was spoken,never mentioned.The director of Nursing stated that she hated to do it but..They had to let me go .I filled for unemployment .They have held up my claim for five months.I may even loose my nurse license...Over something that I never did Is their anything I can do I don't have the money for a lawyer.I,m sixty two and never had one single complaint against me.

November 01, 2013 at 4:55 pm

For Thomas, I believe you may have a misunderstanding as many do about what retaliation means under EEOC law. It refers to be being retaliated against for filing an EEOC claim, not retaliation for complaining within the company.

Pamala McBrayer
October 30, 2013 at 2:50 pm

I live in Texas, a "right to work" state, also an "employment-at-will" state.

Age discrimination is a reality, and the cost of downsizing older workers who have been loyal to the company for years, and literally aided in building sales and success, have EARNED their ease out. YES! Negotiate your severance terms, with the aid of a labor lawyer.

If there was a non compete agreement, it is imperative that you ASK to be released from that!!! You are not leaving voluntarily and they are turning YOU LOOSE voluntarily. They should be prepared for the possibility you could work for a competitor and it is not fair for them to restrict your access to the job market in this circumstance. You may have to agree not to disclose internal information about the company you are being released from to a competitor, but, if they are taking your job overseas, that bet may be off, too. It may then become an unenforceable agreement, because they are leaving the market you served or were a resource for. If they abandon the market, they need to free you up to do what you do, without any further hinderance.

October 28, 2013 at 9:45 pm

The suggestion of 1 month severance for every year employed is absolutely ridiculous. If I worked for 10 years and the job loss was due to a downsizing, I could see a 6 months severance, but to equate a months pay for every year is not reasonable.

October 22, 2013 at 11:20 am

The only problem here is, age discrimination is very hard to prove. Unless a company is especially dense or arrogant, all they have to do is claim they fired you because you weren't preforming up to their standards. Thomas's post provided a typical blueprint on how they do that. Or, they can just claim they're downsizing, and eliminating your job, among others. Unless you can show a consistent pattern of terminating employees over a certain age, there's no way to prove discrimination.

October 20, 2013 at 12:09 am

Gather all of your documentation. Seek out a lawyer that specializes in age discrimination and labor law. This is important. Don't rely on a general practice lawyer. You need a lawyer with prior experience in this field. Review the case with the lawyer. Be prepared to pay a retainer if the lawyer thinks you have a case worth pursuing. The lawyer will take a percentage off the top of your settlement upon payment. These cases seldom go to court. They are usually negotiated by the attorney and your former employer's attorney.
I did this. My case took about seven months to settle. The settlement did not set me up for life, put it provided for a good start on a retirement that I am currently enjoying. Good luck and have patience. The gears of justice turn ever so slowly.

October 18, 2013 at 1:34 am

I got discriminated for my age [I was 63 when they hired me] . They started asking me how long I plan to work, and many other statements supporting AGE DISCRIMINATION based in the workplace.
They later suddenly started overloading me with impossible loads of work, and I filed a formal grievance with HR.
I was told in writing that everything is OK, they also removed this supervisor from managing me, and told me that in case this continues, or if I see any RETALIATION from the managers to go back to HR.
Then 5 months later the new manager started the same - overloading me with impossible workloads & he started writing me up, lying constantly.
I overturned with proof many of his false accusations.
In another 6 months he fired me since as he said I did not improve.
It was definitely an ACT OF RETALIATION which is prohibited and proves discrimination in EEOC's eyes.
I got no severance for 2 years of work. No COBRA costs also.
I have plenty of information supporting the facts for all the above.
I plan to file with EEOC, or the ILLINOIS State Labor EEO for AGE DISCRIMINATION, and also RETALIATION.

I will appreciate any experience, help, and suggestions for my case above???

David Dingee
October 15, 2013 at 10:46 pm

Right to Work refers to whether or not a worker can be forced by a collective bargaining agreement to pay dues or fees to a labor union. It has nothing to do with this story. I also believe that some states prohibit language in a severance agreement language referring to fighting unemployment claims or not fighting them.

October 12, 2013 at 10:11 am

Charles, the correct term is "employment-at-will."

Charles Collier
October 12, 2013 at 8:37 am

If you live in a right to work state, your employer can fire you at anytime without cause. The unfortunate reality is that the only thing you will probably get is unemployment. Many of the other things that are mentioned in this article benefits that are granted by the employer.