Did you know that you can negotiate a severance before you're hired? It's a smart way to maximize your exit package. The following is a guest post from ESI Money, a blog that focuses on achieving financial independence through earning, saving, and investing (ESI).
It's written by a fifty-something ex-executive who's now enjoying the fruits of early retirement. He offers excellent advice on how to negotiate your severance before you're hired with a new firm. Severance negotiation stories are great because they are never discussed. The more you know, the more power you will have. – Sam
As most Financial Samurai readers know, Sam is the expert on engineering your layoff.
His methods have helped hundreds negotiate great packages as they leave their employers for greater things. Obviously this is a tried and true method for maximizing your exit from a company.
But it's not the only way. Today I'll be telling you how you can negotiate your severance before you're hired for a new job.
Overview On Negotiating Your Severance Before You're Hired
This post will detail the ins and outs of employment contracts (sometimes referred to as employment agreements). I prefer the former since that's what every executive I've ever worked with calls them.
Employment contracts are negotiated between an employer and employee prior to the employee joining the company. These contracts grant rights and privileges to each party as well as impose requirements on both. You can utilize an employment contract to negotiate a severance before you're hired.
This post is not meant as legal advice. Rather it is a guideline to help you learn about employment contracts and potentially make use of them. If there are lawyers with personnel contract experience join us in the comments to fill in any blanks I miss.
I'm a business executive who has dealt with employment contracts for two decades. I've had employment contracts with four separate companies over almost 20 years. And I got payouts on two of those agreements for almost $200,000 total.
Key Parts Of An Employment Contract
As with any legal document, employment contracts can take many forms. But here are some of the most common requirements an employee may agree to in an employment contract:
- Keep company trade secrets confidential while employed by the company and within some period after leaving.
- Not solicit fellow employees or former clients from the company for a given period of time after leaving the company aka gardening leave.
- Act in the best interest of the company and not make business agreements that could cause harm.
- Not use company contacts, resources, and relationships for personal gain outside of work (such as divert work from the company to a personally owned business).
- Acknowledge any work done on company time and with company resources belongs to the employer. There may even be a clause stating that whatever ideas you have while employed with the company belong to the company if the ideas are within their line of business.
- Shall devote full business energies, interest, abilities and productive time to the company (will not accept other employment, consulting work or render other services to any person, business or organization).
- Agree not to acquire, assume or participate in, directly or indirectly, any position, investment or interest that employee knows is adverse or antagonistic to the company, its business, clients, strategic partners, investors or prospects.
- Agree to termination for cause (if employee materially breaches the employment contract, disobeys a reasonable directive of the company, or violates any written company policy that is determined to be materially contrary to the best interests of the company; engages in any knowing or intentional act or omission that is materially contrary to the best interests of the company; fails to restrict use of, or abuses, drugs or alcohol, including impairment of ability to function at work; commits any fraud, embezzlement or other act of dishonesty against the company; commits a criminal act, or is convicted of, or pleads no contest to, a felony.)
Here are some common provisions an employer may agree to:
- Amount of compensation the employee gets if terminated.
- Detail the employee's annual salary, bonus criteria, and annual raises.
- Explain employee benefits and vacation.
- List employee title and reporting structure (especially title of person employee will report to).
- Specifics of employee relocation package.
- Allow the employee to purchase stocks or securities in given amounts at given rates.
- List what happens if employee dies, is disabled, or voluntarily resigns.
In addition to the above, there are often sections pertaining to the overall agreement such as:
- Provisions regarding how disputes should be legally resolved (i.e., arbitration).
- Lists what state laws will be used to decide differences.
- Catch-all legal mumbo-jumbo that covers other (usually minor) parts of the contract.
So you can see there's a lot of things that can be negotiated in an employment contract. Thus, you should make it your mission to negotiate a severance before you're hired. Everything is negotiable.
Related: Is Twitter's Severance Package Any Good?
Can I Have That In English?
To boil things down to the vital elements, here's the essence of an employment contract:
- The employer agrees to hire the employee and spells out his/her compensation.
- And the employee agrees to work for employer and work in its best interests.
- If the employee is terminated for cause (doing something illegal, immoral, or hurting the company), then he can be released, without any additional compensation.
- And if the employee is terminated for any other reason, there's an agreed upon payout and method of payout.
- Also, if the employee leaves of his own free will, s/he gets nothing extra.
If it's not obvious, the pros and cons for the employee boil down to these:
- Pros — Knows that he has a certain amount of income guaranteed even if he's laid off or fired.
- Cons — Employee has to agree to some conditions, though these are terms†most would likely fulfill anyway in working for any company.
In other words, it's a pretty sweet deal for the employee. Having visibility is why most executives want an employment contract.
How It Works In Practicality
Generally at some time in the recruiting process, the subject of an employment contract is brought up, usually by the employee. Savvy prospects know the value of negotiating a severance before you're hired.
Employers are loathe to sign such an agreement as it requires them to pay an employee if there's a falling out. Employees want a contract, of course, because it guarantees them a payout if the relationship goes south.
So the topic is brought up and the negotiation is started. Is there an agreement? What are the key provisions? Who does what? And so forth. Until there's some sort of resolution.
How To Get An Employment Contract
Employment contracts are difficult to get, especially in a slack labor market.
As I noted above, employers don't like to give them because they basically take on financial liabilities (which no company likes to do) without a lot of compensation in return.
So why do employers give them and who gets them?
Employers give contracts to key employees in order for them to 1) accept a job initially and 2) remain in a job (with a sense of security) as long as useful.
In short, the employee has to be valuable enough that the benefit of having the employee is greater than the liability of the agreement.
As such, they are generally given at the executive level to managers who have the ability to deliver substantial business results. That said, any level of employee, as long as they are important to the company, can get one.
Related: How Much Are You Willing To Sacrifice To Change Careers?
My Employment Contract Story
Many of these principles can be illustrated through my personal experience.
In 1999 I joined a new company as a vice president.
It was standard for them to have employment contracts with all executives.
The standard agreement at the company basically entitled me to one year's salary if I was let go for almost any reason. The exceptions were so unlikely to happen (get convicted of a felony, act immorally in a way that hurt the company, etc.) that there was virtually zero chance of me not getting a payout if I was let go. I was thrilled.
Five years down the road I was ready for a change and preparing to be hired by a new company as an executive vice president. This organization was much smaller, but about as profitable as my current company. The new, small company had no one with an employment contract — they didn't even know what one was (or said they didn't).
I provided them with a copy of my current agreement and told them I needed one before I would come aboard. They consulted their lawyer and basically copied the one I had at the old firm. The only change was they reduced the one year payout to six months. This was agreeable to me given my new compensation was much better and I joined the firm.
I worked for that company for nine years when another company wanted to hire me as their president in August 2013, a significant move for me. Again when I brought up the subject of the employment contract the Owner/CEO claimed he'd never heard of one. I provided my copy and they eventually copied it. I joined the firm.
Exercised My Contract
The first full year I was with them, we had a record sales year. The fourth month into year two the CEO left to run another business, they brought in a new CEO who didn't want a president, and they laid me off in May 2015. Or in kinder terms they “exercised my contract”. I was paid $150,000 to go away. Not bad.
At that point I contemplated early retirement, but Sam had not yet convinced me of its benefits. I interviewed with a new firm and was hired within three months of being laid off. They too claimed they had never heard of an employment contract. I gave them a copy of my most recent one and we began to negotiate back and forth.
Two significant provisions changed
1) there was a sliding scale based on when I was let go of what I would receive (if let go without cause within the first year I got one year's salary, if let go without cause within years 2-5 I got six month's salary, and so forth)
2) there was a provision added that detailed how the employer could get rid of me if I didn't perform the way they wanted.
I was fine with option #1 but pushed back on #2. The purpose of an employment contract is to pay the employee a set amount if he is let go for ANY reason other than criminal activity or significantly hurting the company. They wanted to add a performance element, something that is usually not in an employment contract. I had been around the block a few times and knew that employers can trump up almost anything to be a performance issue if they want, so I didn't want the provision.
But they held fast and gave me a take-it-or-leave-it ultimatum. In the end I took it since even if they enacted the performance clause I still received five months' worth of guaranteed salary which wasn't that different than the six months I had.
Well, as you might know it, things did not go well. They created nonsensical issues and gave me unattainable objectives to hit within a 40-day grace period (the first part of my severance time). I knew I wouldn't hit them, didn't hit them, and 40 days later they exercised part two of my contract and paid me almost $50,000 to get lost. You can read the specifics in my series titled I Retired!, which is what I did at the end of it all.
Employment Contract Tips
Now that we all have a common understanding of how employment contracts work, here are a few tips for you to consider as you work to negotiate your severance before you're hired:
- As you grow in skill and experience, try to get a contract (it's generally easier when you switch companies). If your work/skill is valuable enough you can do it. Even if it's basic and doesn't guarantee much, get one as it can be used as a foundation to build upon at your next move.
- Make the amount/length of time which the employer has to pay you if terminated as high/long as possible. As a general guideline, six months is great and a year is phenomenal. Three months is probably more likely and more acceptable to most employers.
- Try to avoid a declining scale that ends at zero. If the scale starts at a year's salary and ends at six months, that's fine, but don't accept something that works down to a minimal amount, especially if it's zero. The only way I'd do that would be if it was my first agreement. At that point it's better to have something than nothing if that's all the employer will agree to.
- Ensure the amount renews daily and not be for a fixed period. This is similar to the previous comment. You want your six-month (or whatever) agreement to pay for six months, so it will renew daily. You don't want an agreement that starts with six months when you begin the job, then counts down day by day until it hits zero six months later.
More Employment Contract Tips
- Once you have an agreement, take it to the next employer. Try to get terms at least as good as you had but improve if you can. I wasn't successful at this as I started so high that the only way was down, but most will begin lower and work their way up. You may go down but perhaps you can leverage a lower contract for something you prefer like higher compensation.
- Use a lawyer if you're not versed in dealing with contracts. I handled my own agreements as I have business contract experience, but most people need advice. If there's any question, at least have a lawyer give it a once-over. You do not want to end up with a contract you think covers you and does not. And believe me, they can be difficult to read for someone not used to them.
- Reduce your job-related emergency fund. If you want six months' salary in your “get fired” emergency fund, a six-month contract covers it. This allows you to take money that could be in savings and invest it. You'll still need some emergency cash to cover other unexpected expenses.
- Don't quit because you hate the job/company/people. Even if it gets bad, try to stick it out. You can always ask them to “exercise your contract” or even reach a compromise if you really dislike your situation (for instance, you may have a six-month guarantee but would be willing to leave if they paid you for three months). In the end you get nothing if you leave voluntarily so don't do it unless you have a great opportunity you're moving on to.
And Even More Additional Tips
- Try to eliminate performance-based clauses. These tend to favor the employer and give them plenty of latitude to let you go and pay less (or nothing!) than they might otherwise be required to.
- You can ask for more than money. Everything's negotiable, so if it's in the contract (or you want it in), be sure it's included. Perhaps you want more vacation, a car allowance, or added benefits only for a select few. Get these in the agreement to ensure they are given (I had one friend who was promised stock options verbally and then didn't get them. If they had been in his contract, the company would have been required to pay them).
- Don't agree to any extra commitments if they fire you. My last employer tried to get me to agree to a whole host of extra provisions in order to get my severance check. I told them they had two choices: 1) pay me with no extra commitments on my part or 2) offer me extra compensation to consider the extra provisions. They paid me. My contract did not stipulate that I needed to agree to anything extra to get a payout so I wasn't going to do so.
It's Possible To Negotiate A Severance Before You're Hired
I know this is a broad and complicated topic and you likely have a ton of questions and thoughts. But I hope it helps you realize that it's possible to negotiate a severance before you're hired.
The time to think about negotiating your severance is the same time you're considering taking a new position. Take the steps upfront to ensure your severance is set before you even set foot at the company.
Note from Sam: I first published How To Engineer Your Layoff in 2012 and have recently expanded it to over 200 pages with new resources, strategies, and additional case studies thanks to tremendous reader feedback. I've continuously used reader feedback and successful case studies to make this the best and only book on the market to teach people how to negotiate a severance.
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26 thoughts on “Negotiate Your Severance Before You’re Hired To Maximize Your Exit Package”
Looking at this article and seeing how relevant it is in today’s market. I know you posted a couple of links to an emp contract, I looked them over but was really looking for some that touch on severance before you start work and after you are employed.
You mentioned you would show your prospective employers the one you had and they would copy it. Was wondering if you would be interested in sharing yours (I’m willing to pay) so I can use that as a template.
I’m considering other Senior Leadership opportunities but with everything going on in the market, I’m second-guessing making any kind of move because the role could be canceled before I start or laid off after. I don’t want to leave my organization and risk that occurring.
It would be much appreciated :)
I turned down a job with another firm earlier this year in part because they wanted a 2 year non-compete, but they weren’t willing to provide any severance benefit for that non-compete. After back and forth on an employment agreement, they finally offered me four months of severance in the first two years of employment only for a full 2 year non-compete. Between that, tripling my commute time, and a few other things, I decided to pass on the offer even though it would have been a promotion from current position (plus things were going well at current job).
This is a great primer. I love everything in writing, too. I do that with my clients, too. This is exactly what I’ll do for you and for X money. If they decided not to complete the terms, it is already spelled out how we end things. Makes everything simpler.
Interesting post ESI (and now I know what that stands for in your name). Working for a low-level government position, I get some sweet fringe benefits and they cash out PTO when you leave. I know a lot of places cash out the PTO, so the only upside I have is that they give a LOT of PTO. I’ve only been there two years and have a few months salary headed my way.
Fantastic post, I learned something new today. I bookmarked this to reference back to it at a later time. I had never heard of employment contracts and if I’m ever lucky enough to move up in the company, I guess I would have to learn what they are!
In employment, it’s so important to get everything in writing so that there’s no old switch-er-roo down the road. Thanks for the post!
Wow! This is great ESI and Sam. You always hear of the big corporations having to payout millions in these type of contracts, I never considered that anyone could attempt to get one. I think the greatest opportunity for success would be if you were headhunted or had some other scenario where the employee had great skill that was needed by the company so the power of negotiation would be on the side of the employee.
Standard practice for the business I am in (architecture) 2 weeks severance ( week before pay week) and usually at the end of the month just before your health insurance is done for the month.
That is unless you are a partner. No negotiation option.
From my personal experience as an employee in American… I was NEVER GIVEN A CHANCE to negotiate Severance pay or ANYTHING ELSE.
Before, During, or After.
In fact, if I DID take such a bold move, it would almost guarantee instant dismissal from the company!
But then again, I never held a high-brow job like you guys…
For that matter, I never heard or saw an “offer letter”–whatever the F that is!
You are subject to the company’s POLICIES. Period. End of sentence. Human Resources is every employee’s GOD. You don’t like what they dictate–you quit on your own (preferably Before being fired!). In fact I was screwed over big-time by being Set Up by the company I worked for for 5 years. One day I’m there at my bench doing my work–Police tap me on the shoulder and I’m escorted out. Bye-bye job! Why? I “violated company policy”–their way of trying to Justify F-ing me over, because I chose to be a non-conformist, free-thinking man who DIDN’T KISS THE ASSES OF THE BOSSES. Wildcards are Not wanted in companies in America!
I love the anger and the fire jtd. Keep it up and harness it to get ahead!
Very interesting post. I don’t think these type of situations are as common for people working in the public sector… it seems like most employment terms are pretty much set the same for everyone across the board. For people working for the city, county, state or federal government who do not get to benefit from this type of situation, maybe there are other things that you can benefit from. In my field, I get 3-4 days off each week. So, in my spare time, I run 2 side businesses and own a few investment properties. I want to make sure I am making the most of all of my time especially while I am off the clock at work. Time is money!
This is a great resource article.
I have had quite a bit of experience with employment contracts mostly in conjunction with an acquisition. The keys for me are the compensation, the termination clauses, and the non-solicitation provisions.
But I haven’t really worked with pre-negotiated severance. That’s a great ask for any employment negotiation.
Thanks for posting this. It can definitely be used as a reference going forward.
Cool post ESI! It takes a lot of hard work and patience to achieve the valued position of being worth an employment contract. I would love to do this in the future and am motivated by hearing about your experience with it. Do you think this is something that comes in more at the VP level or have you heard of Directors or others also getting them?
I think any position can qualify if it’s vital enough.
I know there were some “lower level” employees who had contracts when I worked in the music business because they worked directly with the artists (and thus were extremely vital).
So if you’re in a key position, you can get one. If you’re not, even if you’re a VP, it will be hard to have one.
I’d advise anyone just get started with even something small. Try to get a short paragraph added in an offer letter like I suggested in a comment above. That gets you started and allows you to build upon it in subsequent jobs. (3 months severance becomes 6 months becomes 9 months, etc.)
I never thought about negotiating a severance before I was hired. When I was fresh out of school I was happy to have a job. I have been with the same company for the last 11 years but if/when I look around I will definitely keep this in mind. It makes too much sense not to. Thank you for sharing.
This is crazy. I’ve never not had a contract! I would never consider moving from a job with a contract to a job without a contract, redundancy provision or not. Having a document which spells out your obligations to your employer and their obligations to you has saved me a million potential headaches already and I’m only at the start of my career!
Is it usual for medium to large employers to not provide employment contracts? What on earth do Human Resource departments do in the US?
Employment contracts are rare in the U.S.
Some companies have them but my guess would be most don’t — at least for the vast majority of people. At the higher levels of an organization, they are more common.
The HR question made me smile…I’ll leave the answer to a reader who works in HR lest I get myself in trouble. :)
I’ve worked for 7 different companies so far in my career (that’s low for the amount of time I’ve been in Silicon Valley).
Unfortunately, I’ve never had a employment contract with a defined severance package. Every new job, I’d ask for one, but was always told “we don’t do that”. Granted, while some of the positions were management, none were VP+.
Thanks for the overview of the process. Next time I’m in a position of power and willing to walk away, I’ll have to hold out and use that as my stepping stone for the future.
I can’t agree more. Everything is negotiable in some way when you take a new position and it’s a rare situation where asking for something reasonable won’t get the affirmative. Even if they won’t negotiate on something like vacation as is often the policy you might pickup extra pay to compensate. For severance remember that in most states your severance subtracts from unemployment benefits, so consider that a starting point for negotiation. One final thing to remember is golden handcuffs like stock options also make a good parachute.
Any links to a good sample employment contract for us to review? I would love to read one!
I thought about actually including a sample in this post but it would have made it way too long! ;)
I Googled “employment contract sample” and found this one:
It has the general structure and basic points, though needs to include the part about what the employer as severance. But the basics are there.
Here’s a similar offering:
Perhaps if there’s enough interest Sam will have me do a follow-up and I can break down the key sections part by part with suggestions and watch-outs. ;)
But the above should give you a flavor of what they look like.
Also, they can be as simple as a paragraph as part of the offer letter that says something like, “If employee is terminated for any reason then employer will provide three months salary as severance.” This is a great way to get started with a “contract” if you don’t have one. You can then leverage this into something larger as you move up or move on.
Great insights! If I ever go back to work in a corporate setting I’d definitely want to negotiate terms and get a contract if at all possible. Sorry to hear your last firm decided to exercise clause 2 and claimed those nonsensical issues on you. I’m surprised to hear that all those firms hadn’t heard of contracts before. Do you think they were playing dumb to try and avoid giving you one initially, or did it seem like they really had never used one before?
I find employment negotiations and contracts fascinating. So many people quickly just accept whatever offer is given to them when they start a new job even if they’re not that happy about it versus trying to work something out up front. I think fear of losing the offer is a big part of that and not realizing they have the option to negotiate.
I remember talking to a recruiter friend once who said everyone should always negotiate terms before signing an offer because employers expect it. Perhaps that doesn’t work with every single employer, but I’ve got to imagine it works with a lot of them if they want you badly enough.
I think the first company really had never heard of an employment contract. they were a smaller, mom-and-pop sort of place (though very profitable) and not very sophisticated.
I’m not sure about the second one. They were much more sophisticated so I’m not sure what they really knew.
I agree with your friend — negotiate and ask up front. It’s much easier to do when you’re still in the pre-hiring honeymoon phase. It will be well worth the effort if things go south.
As a former employment attorney, I’ll say that I dealt with a lot of employment contracts. The company will try to figure out a way to burn you, if they can, especially if you leave on bad terms.
You definitely want to have an attorney look over your contract. This is especially true with non-compete provisions. You never know what might happen, so really important to carefully consider the effect a non-compete might have on you.
ESI, thanks for sharing your experience with employment contracts. I have never had one, but always thought if I left my Fortune 50 company for a smaller firm, that I would want to get one.
I’ll be book-marking this post for future reference!
Interesting. In China though, they have standard severance package N+1, where N=number of years of employment and 1 month salary. So if you are employed 3 years, you get 3+1 monthly salaries as a severance package in case of lay off. No negotiating as far as I know, maybe at the top level management.
That’s interesting. I’m surprised that China would set this up for people. It sounds too good to be true.