Checklist · Labor and Employment

Responding to a Termination and Reviewing a Severance Agreement: A Practical Checklist

29 U.S.C. § 626

Type
Checklist
Jurisdiction
National
Date
2025-03-26
Topic
Labor and Employment

This checklist runs a termination from the meeting itself through the claim that may follow, in nine phases. Phases 1 through 3 cover the meeting, the written account that becomes the case, and the preservation of documents and the personnel file. Phase 4 is the four-question claim triage, and Phase 5 is the severance review clause by clause. Phases 6 and 7 cover unemployment, continuation coverage, final pay, and the mitigation obligation that quietly sets the value of the claim. Phase 8 covers the administrative charge and the forum question, including arbitration. Phase 9 runs the same event from the employer's side. Four model letters, a deadline table, a division of responsibility, and a ranked failure-mode list are included.

Responding to a Termination and Reviewing a Severance Agreement: A Practical Checklist

Labor and Employment > Termination and Severance | Published 26 March 2025 - Updated 27 July 2026 | UpLaw - uplaw.us

"I'd like to review this" is a complete sentence, and it is the single most valuable thing anyone says in a termination meeting.

Keywords: the meeting, the account, preservation, triage, severance, benefits, mitigation, deadlines

How to use this checklist

Nine phases with - [ ] items and a Why it matters, and the traps note under each.

Doctrine is in Termination, Severance, and Final Pay: A Comprehensive Guide for Employees and Employers. The narrative is At Will Does Not Mean For Any Reason: What Actually Makes a Firing Unlawful. The forms are in The Termination and Severance Toolkit.

Phase 1 — The meeting and the first day

  • [ ] Do not sign anything in the room — no release, no acknowledgment of the reason, no resignation letter.
  • [ ] Say only: "I'd like to review this."
  • [ ] Ask what reason will be given, and ask for it in writing.
  • [ ] Ask who else was affected, if it is described as a reduction.
  • [ ] Ask what the company will say to a prospective employer, and who will say it.
  • [ ] Ask when final pay will issue and what it includes.
  • [ ] Ask when the continuation coverage notice will arrive.
  • [ ] Note who was in the room and their titles.
  • [ ] Do not argue the reason, and do not admit anything.
  • [ ] Collect any documents handed over, and note anything shown but not given.
  • [ ] Say nothing publicly, on any platform, ever.

Why it matters, and the traps. Everything said in that room will be quoted, by both sides, for years.

And the pressure to sign on the spot is itself evidence. Where the agreement releases age claims, 29 U.S.C. § 626 entitles the employee to twenty-one days — forty-five in a group program — so a same-day deadline is a defect, not a deadline.

Phase 2 — The written account

  • [ ] Write it today, while the words are exact.
  • [ ] Date, time, location, and everyone present.
  • [ ] The reason given, quoted.
  • [ ] Anything else said about performance, the role, or the future.
  • [ ] Your responses.
  • [ ] What documents were handed over or shown.
  • [ ] Then the timeline of the preceding six months: complaints made, leave requested, accommodations requested, injuries reported, protected activity of any kind — with dates and to whom.
  • [ ] Reviews, ratings, and any discipline in that period.
  • [ ] Comparators: who else did the same thing and what happened to them.
  • [ ] Any statements about age, sex, race, disability, pregnancy, or leave — who said them and when.
  • [ ] Save it somewhere outside company systems.

Why it matters, and the traps. The reason given is the case. Pretext is proved by showing the stated reason shifted or is factually false, and that comparison requires knowing exactly what was said on day one.

And the six-month timeline is the question that finds most viable claims. Clients do not volunteer it because they do not see the connection between a complaint in March and a termination in May.

Phase 3 — Preservation

  • [ ] Gather what you already lawfully possess: offer letter, contract, reviews, handbook, pay stubs, benefit statements, equity documents.
  • [ ] Gather emails and messages already in a personal account.
  • [ ] Take nothing confidential. No client lists, no financial data, no files downloaded on the way out.
  • [ ] Request the personnel file in writing — most states require production.
  • [ ] Request the plan documents for any benefit at issue.
  • [ ] In a group termination, request the 29 U.S.C. § 626 disclosure schedule — the decisional unit, eligibility factors, and the job titles and ages of those selected and not selected.
  • [ ] Photograph or export anything on a personal device before returning company equipment.
  • [ ] Note what is on company systems that you cannot access.
  • [ ] Preserve your own devices; do not wipe anything.
  • [ ] Keep a copy of everything handed over at the meeting.

Why it matters, and the traps. Taking company documents is the most common self-inflicted wound in this area. Misconduct discovered afterward that would independently have justified discharge cuts off the remedy as of the date of discovery — so the file taken to prove the case frequently ends it.

And the disclosure schedule in a group program is the single most informative document available, because it answers the disparate-impact question on its face.

Phase 4 — The claim triage

Why it matters, and the traps. Most terminations are lawful, and a clear answer in the first meeting saves a client from spending money on a claim that does not exist.

And the retaliation theory is frequently stronger than the discrimination theory it accompanies, because the timeline is cleaner — see Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006) for how broad the standard is.

Phase 5 — The severance review

  • [ ] Identify what is being released — read the release clause in full.
  • [ ] Confirm the consideration is something beyond what is already owed.
  • [ ] If the employee is forty or over, check every 29 U.S.C. § 626 requirement: written and understandable · specific reference to age claims · no waiver of future claims · additional consideration · written advice to consult counsel · 21 days (45 in a group program) · 7-day revocation.
  • [ ] Note that a defective release does not require tendering back the money — Oubre v. Entergy Operations, Inc., 522 U.S. 422 (1998).
  • [ ] Confirm the agreement does not purport to waive: unemployment eligibility · workers' compensation · the right to file an agency charge · vested benefits under 29 U.S.C. § 1053 · earned wages.
  • [ ] Negotiate the characterization of the separation.
  • [ ] Negotiate a neutral reference clause naming who responds and what they say.
  • [ ] Make non-disparagement mutual or strike it.
  • [ ] Address continuation coverage premiums.
  • [ ] Address equity vesting, bonus, and commissions.
  • [ ] Negotiate the non-compete and non-solicit — this is the only moment.
  • [ ] Check for new obligations: an expanded covenant, an uncompensated cooperation clause, a clawback.
  • [ ] Confirm confidentiality does not purport to bar protected disclosures.
  • [ ] Get every promise in writing — oral assurances are worth nothing after signing.

Why it matters, and the traps. The number is rarely the most valuable term. The characterization, the reference, and release from a non-compete cost the employer little and are worth a great deal.

And make one consolidated ask, not a series. Employers respond badly to serial demands.

Phase 6 — Benefits, pay, and coverage

  • [ ] Apply for unemployment immediately — benefits generally run from the application.
  • [ ] Describe the separation accurately. The statement is compared against the employer's, and inconsistency follows the case.
  • [ ] Calendar the appeal deadline if denied — frequently ten to fifteen days.
  • [ ] Note that an unemployment hearing produces sworn testimony from the decision-maker, early and cheaply.
  • [ ] Check whether severance delays or offsets benefits in this state, and how characterization affects it.
  • [ ] Confirm final pay: timing, accrued leave, commissions, expenses — a state-law question, with the federal floor at 29 U.S.C. § 206 and 29 U.S.C. § 207.
  • [ ] Watch for the continuation coverage notice — 29 U.S.C. § 1161 through 29 U.S.C. § 1167 — and calendar the election window from the qualifying event, not from the notice.
  • [ ] Compare continuation coverage against marketplace options before electing.
  • [ ] Roll over or leave retirement accounts deliberately; do not cash out.
  • [ ] In a group action, check WARN and the state analogue — 29 U.S.C. § 2102 and 29 U.S.C. § 2104.

Why it matters, and the traps. The continuation notice frequently arrives late, and the election window runs from the qualifying event.

And the unemployment appeal is undervalued. For a claimant contemplating a discrimination charge, that hearing transcript is the best discovery available for the price of a filing.

Phase 7 — Mitigation

  • [ ] Start looking for work now.
  • [ ] Keep a log: date, employer, position, method of application, and response.
  • [ ] Apply for comparable positions — the duty is reasonable diligence, not accepting anything.
  • [ ] Document interviews and offers, including any declined and why.
  • [ ] Keep records of job-search expenses.
  • [ ] Register with the state workforce agency.
  • [ ] Update the résumé and prepare a two-sentence answer to why the last job ended.
  • [ ] Do not disparage the former employer in interviews.
  • [ ] Note that back pay stops on re-employment at equal or greater pay.
  • [ ] Revisit the severance calculus if a comparable job appears quickly.

Why it matters, and the traps. Mitigation is the largest single determinant of case value. An employee who finds a comparable job in six weeks has a six-week back pay claim, however egregious the discharge.

And the log is not optional. The employer will demand it, and its absence is argued as failure to mitigate.

Phase 8 — Deadlines and forum

  • [ ] Calendar the administrative charge deadline: 180 days, or 300 where a state agency has jurisdiction — 42 U.S.C. § 2000e-5. It runs from the act.
  • [ ] Calendar the state agency deadline, which is frequently shorter.
  • [ ] File a dual charge where available.
  • [ ] On receiving a right-to-sue letter, calendar the filing window — typically ninety days.
  • [ ] Note claims that skip the agency: wage claims · leave claims under 29 U.S.C. § 2617 · contract claims · public-policy torts · Section 1981 race claims, with a longer period and no exhaustion.
  • [ ] Obtain every document signed at hire, including the electronic onboarding packet.
  • [ ] Determine whether an arbitration agreement applies, and whether a statutory carve-out reaches this claim.
  • [ ] If arbitration applies, note the consequences: no jury, limited discovery, confidentiality, a nearly unreviewable award.
  • [ ] Preserve the severance revocation window if the agreement was signed.
  • [ ] Diary every deadline with the client in writing.

Why it matters, and the traps. The charge deadline is the most commonly missed deadline in employment law, and it runs from the discriminatory act rather than from the discovery that it was unlawful.

And the forum question is answered in the onboarding packet, which clients have forgotten they signed.

Phase 9 — For the employer

  • [ ] Confirm the reason is documented contemporaneously and honestly.
  • [ ] Confirm the same reason will be given to the employee, the separation notice, the unemployment agency, and any agency charge.
  • [ ] Confirm the policy was followed, and that comparable employees were treated the same.
  • [ ] Check the calendar against complaints, leave requests, accommodation requests, and injury reports.
  • [ ] Have the decision reviewed by someone outside the underlying dispute.
  • [ ] Run a disparate-impact check on any group action, by age, sex, race, and disability status.
  • [ ] Verify WARN thresholds, federal and state.
  • [ ] Get the 29 U.S.C. § 626 mechanics right, including the group disclosure schedule.
  • [ ] Conduct the meeting with two people, briefly and factually, with written materials and no pressure to sign.
  • [ ] Confirm final pay complies with state timing rules.
  • [ ] Issue the continuation coverage notice on time.

Why it matters, and the traps. Consistency of the stated reason is worth more than the strength of it. Shifting explanations are the most damaging fact in this area.

And pressure to sign is evidence — it costs nothing to avoid and it is the first thing a plaintiff describes.

Model letters

A. Request for the personnel file and separation documents

"Re: [employee] · Separation of [date]. I request a complete copy of my personnel file, including performance evaluations, disciplinary records, attendance records, compensation history, and any documents relating to my separation. I further request a written statement of the reason for the separation; a copy of any employment agreement, arbitration agreement, or restrictive covenant I signed; the summary plan description for any benefit plan in which I participated; and, if this separation was part of a group termination program, the disclosure required by 29 U.S.C. § 626, including the decisional unit, the eligibility factors, the applicable time limits, and the job titles and ages of all individuals selected and not selected."

B. Response to a severance agreement

"Thank you for the separation agreement dated [___]. I am reviewing it and will not be signing today. [Where applicable: I note that the agreement includes a release of claims under the age discrimination statute and that 29 U.S.C. § 626 requires at least twenty-one days to consider it — forty-five in a group termination program — together with a seven-day revocation period. Please confirm the corrected deadline.]

I would like to discuss the following, in one package: (1) the characterization of the separation as []; (2) a neutral reference clause naming [] as the responding contact and specifying the information to be provided; (3) mutual non-disparagement; (4) payment of continuation coverage premiums through []; (5) release from the non-competition covenant dated []; and (6) the severance amount.

I am prepared to sign promptly once these are addressed."

C. Complaint before resigning (constructive discharge)

"Re: working conditions. I am writing to report the following and to request that it be addressed: [describe the conduct, with dates and witnesses]. I have raised this previously with [] on [] and the conduct has continued. I believe this conduct is unlawful because [it is based on my ___ / it followed my report of ___]. I am asking the company to investigate and to correct it. I want to continue working here and I am unable to do so under these conditions."

D. Reference confirmation request

"Re: [employee]. Please confirm in writing what the company will provide in response to an inquiry from a prospective employer, including who will respond and what information will be given. If the company's policy is to confirm only dates of employment and job title, please confirm that in writing and confirm that all inquiries will be directed to [___]."

The deadline table

Deadline Window Runs from Consequence
Administrative charge (42 U.S.C. § 2000e-5) 180 / 300 days The act The claim
State agency charge Frequently shorter The act The state claim
Right-to-sue filing ~90 days The letter The federal suit
Severance consideration 21 days · 45 in a group program Delivery Shorter is a defect
Revocation 7 days Signing The chance to undo
Unemployment application Immediately Separation Weeks of benefits
Unemployment appeal 10–15 days The determination The appeal and the sworn testimony
Continuation coverage election Limited The qualifying event Health coverage
Leave claim (29 U.S.C. § 2617) 2 years, 3 if willful The violation The claim
Section 1981 race claim Longer, no exhaustion The act Alive after the charge deadline
Final pay State statute Separation Penalties
WARN notice 60 days before — Employer liability

Two rows do the most damage when missed. The charge deadline, which runs from the act. And the continuation election, which runs from the qualifying event even when the notice arrives late.

Who does what

The employee, in week one. Phases 1 through 3 — do not sign, write the account, preserve, request the file. None requires a lawyer, and all of it determines what a lawyer can do later.

The employee, ongoing. Phase 7's job search and log. It is the largest determinant of value and nobody else can do it.

Employee-side counsel. The Phase 4 triage, the Phase 5 negotiation, and the Phase 8 deadlines. Ask for the onboarding packet at intake — the arbitration answer changes the case more than most of the merits.

Employer-side counsel. Phase 9, and preferably before the decision rather than after it.

A benefits or tax advisor, on the continuation coverage comparison and any retirement rollover.

And where the loss of income puts something else at risk, see Fixing a Student Loan Problem: A Practical Checklist, Disputing a Credit Report Error and Defending a Debt Collection Suit: A Practical Checklist, and Defending an Eviction and Enforcing a Tenant's Rights: A Practical Checklist. Each of those has a shorter clock than the employment claim.

Failure modes, ranked

  1. Signing the release in the room.
  2. Missing the administrative charge deadline.
  3. Not writing the account on day one, and losing the exact words.
  4. Not applying for unemployment immediately, or describing the separation inconsistently.
  5. Taking company documents, and creating after-acquired evidence.
  6. Failing to look for work, and failing to document the search.
  7. Not asking about the preceding six months, and missing the retaliation or leave theory.
  8. Negotiating only the number, and leaving the reference, the characterization, and the non-compete unaddressed.
  9. Missing the continuation coverage election, which runs from the qualifying event.
  10. Not checking the onboarding packet for an arbitration agreement.
  11. Posting about it.
  12. For employers: shifting reasons across the meeting, the notice, the agency, and the charge response.
  13. For employers: a defective age waiver — paid, and bought nothing, under Oubre.
  14. For employers: pressure to sign on the spot, which costs nothing to avoid and is the first thing described later.

Items 1 through 4 all happen in the first week.

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