Unemployment is at a 50 year low, but I find myself surrounded by legal issues related to terminations. I recently defended a case where my client was accused of breaching a termination agreement. Just in the last month, I was contacted by a few colleagues looking for advice after the company we all used to work for terminated more than 300 employees in a single day without any notice. The fact is that no matter whether you are the employee that is being let go or you are the employer, there are risks related to the separation that must be considered, much like a divorce.
When a worker is laid off or let go for reasons other than serious misconduct, it can be a good idea to offer departing employees a severance (separation) agreement. Such agreements are vital in protecting companies from lawsuits and other potentially detrimental actions by the departing employee.
The primary objective of severance agreements is to shield a company from legal liability. However, these contracts can also protect the business from numerous other negative ramifications, such as defamation, loss of trade secrets, and the “poaching” of your most valuable employees.
To this end, companies should consider, and departing employees should be aware of, provisions in a severance agreements aimed at preventing all types of damage, not just lawsuits. Here are a few of the most common terms:
1) Confidentiality: A confidentiality provision requires that the employee keep the existence and terms of the severance agreement confidential. By keeping the agreement private, you can avoid the appearance that the employee in question received special treatment.
What’s more, such confidentiality also prevents other employees from seeking out their own severance packages or asking for similar terms.
2) Non-disparagement: A non-disparagement clause prohibits the employee from making negative or disparaging statements—whether orally or in writing—about your company. This helps prevent the individual from bad-mouthing your brand and tarnishing your reputation once they leave your employment.
3) Non-disclosure: A non-disclosure clause prohibits the employee from disclosing your company’s trade secrets and/or other confidential information. Hopefully, you included a non-disclosure agreement in the employee’s original employment contract, but if not, adding it here can help plug this gap.
The provision should be worded broadly enough to include not just your most precious trade secrets, but all of your company’s sensitive confidential information. This can include things such as customer lists, legal information, financial data, internal communications, vendor lists, phone numbers, email addresses, and other items.
4) Non-competition: If the employee had access to sensitive information about your company, you should consider adding a non-competition clause prohibiting he or she from competing with your business for an agreed-upon amount of time, within a specific geographic area. This prevents them from working for an existing competitor as well as starting a competing business of their own.
5) Non-solicitation: In addition to a non-compete, you might also think about adding a non-solicitation clause that prohibits the employee from poaching your company’s clients, suppliers, employees, and other representatives. While non-competition and non-solicitation clauses cover very similar issues, neither one offers total protection on its own, so they both should be considered to safeguard your business from all angles of a competitive attack.
6) Return of company property: Though it might seem like common sense that a departing employee should return all of the equipment they used while on the job, adding a clause requiring them to do this adds an extra layer of protection.
This is especially true today, when employees are often issued numerous items and devices, such as keys, laptops, smartphones, keycards, and badges. Seeing that an entire universe of company data can be stored on something as small as a flash drive, this provision can be especially critical.
7) No admission of liability: This provision keeps the agreement neutral by stating that the agreement does not constitute any liability by either the company or the employee.
8) Governing jurisdiction and venue: This provision stipulates the specific state and venue where any lawsuits alleging a breach of the severance agreement must be filed. This allows you to ensure that if the contract is ever contested, the case will be tried in a location that’s most convenient for you and your business.
While severance agreements are crucial to protecting your business, if they’re not drafted properly and kept up to date, they can actually do more harm than good. Given this, it’s absolutely critical that you work with us as your outside counsel to ensure your agreements are sound and current with federal and state employment laws.
Whether you need a brand new severance agreement drawn up or you’d like us to review an existing agreement, we can help. Contact us today to learn more.
This article is a service of Krugler Law, LLC, Family Business Lawyer®. We offer a wide array of business legal services and can help you make the wisest business choices throughout life and in the event of your death. We also offer a LIFT Start-Up Session™ or a LIFT Audit for an ongoing business, which includes a review of all the legal, financial, and tax systems you need for your business. Call us today at (513) 916-1600 to schedule.
