Severance Negotiation Attorneys in Saratoga, CA
Don't sign away your rights. Know what your severance is really worth.
Request a Free Consultation →Understanding Severance Agreements in California
A severance agreement offers payment or benefits in exchange for releasing legal claims against your employer.
Employers offer severance primarily to obtain that release, not out of obligation, since California generally does not require severance pay.
In Silicon Valley, the most valuable term in a severance package often is not the cash.
Unvested equity, acceleration on termination, and the window you have to exercise vested options after your last day are all negotiable, and any one of them can be worth more than the severance payment itself. A standard post-termination exercise window is often 90 days, which can force you to fund an exercise you are not prepared for, or forfeit options you earned. We review the equity documents alongside the severance agreement, because they are frequently where the real money is.
Signing a severance agreement without review can be costly, because it asks you to give up your legal rights.
Employees frequently waive claims they do not realize they have, including discrimination, wrongful termination, unpaid wages and overtime, or retaliation, often for far less than those claims may be worth. The severance amount offered is rarely fixed; it is frequently a starting point for negotiation, especially when the circumstances of your departure suggest potential legal exposure for the employer.
California law imposes specific requirements on severance agreements.
These requirements include:
- A valid release of unknown claims must satisfy Civil Code Section 1542.
- Employees 40 or older are entitled to additional protections under the federal Older Workers Benefit Protection Act (OWBPA), including 21 days to consider an individual severance agreement and 7 days to revoke after signing. For a group layoff or exit incentive program, the consideration period extends to 45 days, and the employer must disclose information about the group of employees selected for the program.
- California's Silenced No More Act (SB 331) restricts employers from using non-disparagement or confidentiality clauses to silence employees about unlawful acts in the workplace.
If you have been offered a severance agreement, McLellan Law Group can review its terms, assess your leverage, and negotiate on your behalf before you sign anything.
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Severance Negotiation FAQs
No. Signing a severance agreement is always voluntary. If you decline to sign, you generally keep any legal claims you may have against your employer, but you also give up the severance payment or benefits offered in exchange for a release. Whether signing makes sense depends on the value of the severance offered compared to the strength of any claims you might be giving up, an evaluation an employment attorney can help you make before any deadline to sign expires.
If you are 40 or older, federal law (the Older Workers Benefit Protection Act) requires your employer to give you at least 21 days to consider an individual severance agreement, plus 7 days to revoke your signature after signing. For employees under 40, there is no fixed statutory review period, but a reasonable amount of time is expected, and an unreasonably short deadline can itself be a red flag. Regardless of your age, you should have an attorney review the agreement before the deadline to sign.
Yes. Severance offers are frequently negotiable, particularly when the circumstances of your departure suggest the employer may have legal exposure, for example, if your termination followed a discrimination complaint, a leave request, or a wage dispute. An attorney can identify leverage points in your situation and negotiate for a larger payment, extended health coverage, accelerated vesting, outplacement services, or a mutually agreed-upon reference, rather than accepting the employer's first offer.
California Civil Code Section 1542 protects individuals from unknowingly releasing claims they don't know about at the time they sign a release. For a severance agreement to waive claims you are not yet aware of, it must include specific language expressly waiving your Section 1542 protections. If a severance agreement does not include a proper 1542 waiver, or the waiver was not knowing and voluntary, you may later be able to challenge the scope of what you released.
More than most people expect, and the details matter. California law does not let an employer require you to release a claim for wages you already earned unless it actually pays those wages, so a release cannot quietly wipe out unpaid wages the agreement does not pay you for. Non-disparagement and confidentiality clauses cannot be used to stop you from disclosing factual information about workplace harassment, discrimination, or retaliation, and a severance agreement generally cannot bar you from reporting a suspected legal violation to a government agency. A settlement of an employment dispute also cannot include a provision barring you from ever being rehired, with a narrow exception. One caution worth understanding: keeping the right to report something to an agency is not the same as keeping the right to collect money on a claim you released. If any of this is in play in your agreement, it is worth an hour of review before you sign.
If you decline to sign, you typically do not receive the severance payment or benefits offered, but you retain any legal claims you may have against your employer, such as wrongful termination, discrimination, or unpaid wage claims, and remain free to pursue them. In some cases, the value of those retained claims can exceed what was offered in severance. An attorney can help you weigh the certainty of a severance payment against the potential value, timeline, and risk of pursuing a claim instead.
Yes, and usually in your favor. When severance is offered to a group of employees in connection with a layoff or exit incentive program, the federal Older Workers Benefit Protection Act requires 45 days to consider the agreement rather than 21, and requires the employer to disclose information about the group of employees who were and were not selected, including job titles and ages. That disclosure is often revealing. If the selection pattern skews by age, the disclosure the employer is legally required to give you can become evidence supporting a claim. If your employer did not provide it, or provided one that does not add up, that is worth reviewing carefully before you sign.
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