Employee rights What to know about severance pay, insurance and benefits if you’re laid off from your job

Over the past month, scores of businesses across the country have shut down in order to minimize the spread of the coronavirus, resulting in millions of workers losing their jobs and wages. The Bureau of Labor Statistics reports an estimated 22 million Americans have filed for unemployment since mid-March, nearly wiping out all the job gains made since the Great Recession.

If you’ve recently been laid off from your job or are worried you could be, you may be wondering if you’re entitled to a severance package, what it covers and if you’ll be able to negotiate certain elements of it. Getting clarity around what will happen to your pay, insurance coverage and other benefits can help you bridge the gap of lost income.

Here’s what to discuss with your employer in order to make sure you don’t leave anything on the table.

There’s no requirement under the Fair Labor Standards Act that mandates companies provide severance following a layoff. However, organizations that do have a severance policy will usually include it either in the employee contract or offer letter you signed before joining the company, or in an employee handbook.

Organizations can decide whether severance policies extend to all full-time, part-time and hourly wage workers. According to a survey from Randstad Risesmart, an outplacement service, 56% of HR leaders reported they offered severance to all employees following an involuntary separation; the remaining 44% offered it to only some employees, primarily officers, senior executives and managers with the company. Unionized workers may be entitled to severance based on the terms of their collective bargaining agreement.

Companies could also establish new severance policies or revise existing ones given the pandemic, says Keri Norris, who serves as chief legal officer, executive vice president and general counsel at the online legal service LegalShield.

If you’re laid off and presented a severance agreement by HR, it’s OK to say you need time to review the terms before signing, Norris says. Under the Older Workers Benefit Protection Act, employees over 40 must be given 21 days to consider the offer; after signing, they have seven days to change their decision. If you and at least one other person are laid off in a group termination, you’ll have 45 days to consider a severance offer, regardless of age.

It may be a good idea to consult a lawyer to review your options and understand what rights you’re trading in exchange for compensation, Norris says. It’s common that workers must agree to a non-compete clause, a non-disclosure agreement, or terms they won’t sue or disparage the company in order to receive severance pay.

It may be possible to negotiate the terms of a non-compete, especially during a time when many people are worried about finding a new job. If your company is concerned about protecting trade secrets, for example, you might be able to trade a non-compete clause for a non-disclosure agreement that confirms you won’t take proprietary information with you to a new employer. 

As far as what you get in return, make sure you understand what payments and benefits coverage will continue, if at all, and discuss whether any elements of the package are negotiable. In some cases, companies will make it clear up front that the agreements are final and non-negotiable.

If there is flexibility, however, you may be able to negotiate your severance pay, payment timeline, insurance coverage, retirement plan funds and more.

“Be prepared and be thoughtful,” Norris tells CNBC Make It. Given the financially challenging times of the pandemic, your employer may not have the funds to meet every request in a negotiation. There may be less room for discussion if you’re part of a mass layoff. “But every employee has the right, and I would say obligation to themselves and family, to ask.”

Severance pay itself takes shape in a number of ways.

First is the amount. In some cases, severance pay is based on previous wages (for example, one month’s salary), length of tenure (such as two weeks’ pay for every year with the company) or it could be a flat amount not based on earnings history at all.

“Some companies, particularly when layoffs are happening in a situation like now, can determine a base rate, say $500 or $1,000, in severance for all workers,” Norris says. Ultimately, “the employer has the latitude to be able to decide what goes into a severance package.”

It may be possible to negotiate for more in your base severance pay, particularly if you’re a high performer, in a senior position or if you’ve been with the company for a long time. If you were expecting a bonus or commission in the future, you may be able to bring that to the table as leverage to receive a bigger payout.

Second, severance will be paid either as a lump sum or in installments over a period of time. It may be possible to negotiate for one method over another.

For example, in some states, receiving severance pay makes you ineligible to receive unemployment insurance, or it could lower your benefit amount. By receiving a one-time severance payment soon after a layoff, you may be able to file for unemployment coverage later on.

Alternatively, because severance pay is subject to federal, state and local taxes, you may prefer to receive pay in installments that will be taxed at a lower rate.

Workers who’ve lost their job can stay on their employer’s health insurance plan for up to 18 months through the Consolidated Omnibus Budget Reconciliation Act (COBRA).

However, this option can be expensive.

That’s because, as an employee, your employer covers a portion of the costs of your health insurance plan. The average annual premiums for employer-sponsored health insurance in 2019 were $7,188 for individuals and $20,576 for families, according to the Kaiser Family Foundation. Employers, on average, covered 82% of the premium for individuals and 70% of the premium for families.

Under COBRA, you’re on the hook to cover 100% of premiums, plus a 2% administrative fee.

It’s worth asking whether your employer can help cover some or all of these costs for either the full 18-month period or until you’re able to enroll in another plan during open enrollment, Norris says. If your employer is able to continue paying their portion directly to the insurance company, you’ll lower your taxable income. Otherwise, crunch the numbers of how much in premiums you’ll expect to pay out of pocket, and ask for that amount to be added to your severance payout either upfront or over time.

If you receive life insurance or disability income insurance from your employer, discuss whether they’ll be able to extend coverage for a period of time after you’re laid off. One month is a good place to start.

Don’t overlook additional company benefits you may be paying into with every paycheck, including dental and vision coverage, a legal plan, identity theft protection or flexible spending accounts for health expenses and dependent care.

Norris recommends you take a look at your last pay stub and see what voluntary deductions are taken out. Your employer may be able to tell you what your options are for these moving forward, or they may direct you to contact the administrator of each work-sponsored benefit to understand exactly what will happen to your coverage after termination.

While these benefits don’t have the same federal protections that the COBRA requirement does, “at the time of a layoff, it’s important to ask your employer about each and every part of your benefits package and see if there’s a way for it to be continued for a period of time,” Norris says.

There’s no federal law that requires companies to pay out accrued paid time off to workers, but states have their own rules.

According to insurance review site Policygenius, seven states require payment for unused vacation following a layoff, 37 require payment if it’s included in an employment contract or the company follows a PTO accrual system and the remaining six states don’t have legislation regarding paying out PTO after a worker leaves.

If you work for a company, or in a state, that doesn’t require you get paid out for your accrued PTO, you may be able to negotiate for it in your severance package.

This could also impact your unemployment insurance eligibility, so be sure to check with your state’s unemployment office for more.

While the contributions you make to your 401(k) belong to you, any employer match might be considered unvested until you’ve worked with the company for a certain period of time. If you haven’t reached that point at the time of a layoff, you may be able to ask to keep unvested shares of your retirement plan, or other stock and stock options.

Either way, remember to check if you’ll be able to keep your retirement plan with your employer, or if you’ll need to roll it into another investment vehicle by a certain deadline.