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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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52 Comments
Indy
January 16, 2014 at 9:48 pm

I was laid off (their words) for the first time in 28 years of my career. As a software contractor working at a contract firm, you expect a few weeks between clients. They fired me after 2 weeks and 4 days, saying that they couldn't find anything for me. After leaving, I had 2 job offers and 3 interviews within the next 2 weeks.
I believe the reason they fired me was because they just hired over 20 people fresh out of college. Their rates would be lower than someone with almost 30 years experience and contracting firms don't really care about experience as long as they can sell someone who gives them a better rate.
For the first time, I'm working in an IS department and not contracting. The respect you receive is night and day compared with contracting. In the end, I'm glad I was fired.

Jake
January 09, 2014 at 1:00 am

Let's try this one ... median age before lay off's was 46, and after was 37 (p <0.05). The VP just happens to be 33. Real numbers.

Bob
January 05, 2014 at 9:59 pm

The point isn't to keep your job, but to get a softer landing when leaving. I have seen this kind of ploy get someone an entire year of employment, and believe me they had done more than enough to get fired for. Yes, I live in a right to work state. At present I have more than a year's sick leave accumulated, but the institution only pays 5 weeks of that to a severed employee.

Good references, and no disputing of workers compensation are cheap, but you might have to ask for it. As an older employee, I have to think about stuff like this. More importantly. I try to make myself more valuable at every turn. Two separate departments pay my salary meaning that neither really benefits from me leaving. My evaluations are good, and younger people are moving on so I am not in a huge amount of worry, but you have to think about it. It doesn't hurt to have friends in high places, but that is no guarantee either.

Brett
November 19, 2013 at 12:15 pm

This article is very poorly written, extremely biased, and very unrealistic. If a person is fired from a credible business that does any sort of reviews with documentation of poor performance you have a zero% chance of any of the items listed to "negotiate" on. Especially in states that have a "right to work" clause which means the employee or the employer can terminate the working relationship at any point in time without any cause. In fact, if you don't "go quietly", you risk a suit against you for libel, slander or defamation. And, odds are, the company turning a profit is far more likely to have legal representation and funding capable of burying the unemployed. My advice: work hard, know your legal rights, and delete this article.

Jonny
November 16, 2013 at 1:52 pm

I was fired due to another persons short-comings in customer service. Instead of serving the customer first and foremost, he decided to get into an unprovoked argument with the next person of African descent he ran into because he was having a bad day. I am a seasoned employee and won't argue back with a raging baffoon.However, when there's an argument between two employees(Whether you "actively" participated in it or not, and a customer's request is not put before the incident), there is a written coaching. This Hispanic male has a long history of not carrying a radio on him during working hours for weeks at a time, and poorly conversing in an indignifying and disrespectful way with consumers and co-workers. He also speaks pathetically poor English for a man who has been working in the US for years(Latinos are annoyed and offended by him as well), and it causes turmoil on a daily basis. We have all heard stories of how many people this guy has gotten fired, he must be related or married to the relative of someone at the establishment. His work ethics are lazy, lax', and he stands around all day talking at recycling machinery. If I was a Latino, I would be insulted by the way he is allowed to carry himself in the workplace while I am working my buns off. Absolutely ridiculous.

Chapps
November 14, 2013 at 5:47 pm

This article, while well intentioned, is hopelessly naive. My company was recently purchased by a large private equity firm. They immediately went about firing 'excess' staff, giving some of them meager severance and the prior year's bonus, while just firing others - like me - with no severance and reneging on the promised bonus for the prior year's work. No negotiation. Shocking? No - not responding to formal requests from my lawyer was shocking. They're so rich that they could afford to fire the oldest employees without worrying about an age discrimination lawsuit. Who has the money and years worth of time to pursue that kind of claim? And then they had the gall to also refuse to pay promised merit awards when I had two patents awarded on behalf of the company - and then have their lawyers ask me to sign an extension to two other patent applications (which they had added extra material that I had never written and would never sign my name to). Slimy? Yes. And there's really nothing you can do about it in a case like this, unless you have limitless resources and time.

Jan Salsbury
November 09, 2013 at 1:42 pm

This article is basically saying do the wrong thing for personal gain.

Dailey Pattee
November 06, 2013 at 3:06 pm

I n many cases, don't you think that "age discrimination" really discrimination against long-term employees because they become more expensive each year as salaries and benefits must be increased. A 55 year-old newbie hire may be more expensive than the 35 year-old who with eight years' experience. Corporations probably love the term, "age" discrimintion. They can hide behind this amorphous nearly unprovable moniker, when it's really about using people up and laying them off when the new crop of trainees is prepared, however superficially, to replace them.

Bob
November 06, 2013 at 12:18 pm

Johnny,

The accuser has to prove their side, that would disprove what the employer. If you, the accuser, makes up a lie that couldn't be disputed, that doesn't mean it's true. They just couldn't prove a negative.

Johnny
November 05, 2013 at 2:47 pm

Could someone clarify this for me? My understanding of Age discrimination law is that the onus of proof is on the employer to prove that they did not commit age discrimination - rather then the worker, who obviously has no way to prove an accusation at all. If the whole onus is on the victim, how could anyone ever disprove what a former employer claims?