The Termination and Severance Toolkit

Labor and Employment > Termination and Severance | Published 25 October 2024 - Updated 4 August 2026 | UpLaw - uplaw.us

Module 1 takes fifteen minutes and is done within twenty-four hours of the meeting. It is the only module with a clock that has already started.

Keywords: deadlines, triage, release review, age waiver, negotiation, mitigation, records, employer protocol

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Module 1 — The twenty-four hour deadline calculator

Complete this the day of the meeting or the day after. Not the week after.

Date of the termination meeting: ______ Last day worked: ______ Last day on payroll: ______ Last day of health coverage: ______ These four dates are frequently different, and at least three deadlines run from a different one of them.

DISCRIMINATION / RETALIATION CHARGE Deadline: 180 days from the act, extended to 300 days where a state or local agency enforces a parallel law — 42 U.S.C. § 2000e-5. Charge due: ______ ☐ Calendared ☐ Reminder at 60 days out ☐ Reminder at 21 days out Age claims run on the same clock — 29 U.S.C. § 626. Disability claims borrow the Title VII procedure outright — 42 U.S.C. § 12117.

RACE CLAIM UNDER SECTION 1981 ☐ Race, ancestry, or ethnicity involved → 42 U.S.C. § 1981 has a much longer clock and no exhaustion requirement. This claim survives a blown charge deadline. Check it before concluding the case is over.

UNEMPLOYMENT ☐ Application filed — file now, not after the severance runs out Determination expected: ______ Appeal deadline (typically 10–15 days): ______

SEVERANCE OFFER Date delivered: ______ Consideration period stated: ______ days Deadline to sign: ______ Revocation period ends: ______ ☐ Age 40 or over → 21 days individually, 45 days in a group program, 7-day revocation — 29 U.S.C. § 626

CONTINUATION COVERAGE Qualifying event date: ______ — 29 U.S.C. § 1163 Notice received on: ______ — 29 U.S.C. § 1166 Election deadline: ______ ⚠ The election clock and the notice date are not the same thing. Late notice does not always extend it.

FINAL PAY — state statute, often immediately on involuntary separation. Due: ______

LEAVE CLAIM — 2 years, 3 if willful — 29 U.S.C. § 2617. Due: ______

WAGE CLAIM — 29 U.S.C. § 216: 2 years, 3 if willful. Due: ______

The single most common irreversible mistake in this entire toolkit is a charge deadline that passed while the employee waited to see whether the employer would "do the right thing." The employer's good faith does not toll it.

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Module 2 — Nine-question claim triage

Answer every question. A "yes" is not a case; it is a reason to keep reading.

1. What reason were you given, in the exact words used? ______________ ☐ Written ☐ Verbal only ☐ None given Record whether the reason changed between the meeting, the separation letter, the unemployment filing, and the agency response. Shifting reasons are the most powerful pretext evidence that exists, and they are created by the employer, not the employee.

2. Who made the decision, and who replaced you? ______________ Age, race, sex, national origin, religion, disability, pregnancy — 42 U.S.C. § 2000e-2, 29 U.S.C. § 623, 42 U.S.C. § 12112. Sexual orientation and gender identity are sex discrimination — Bostock v. Clayton County, 590 U.S. 644 (2020).

3. What happened in the six months before? ______________ ☐ Complaint ☐ Leave request ☐ Accommodation request ☐ Injury ☐ Wage complaint ☐ Safety report ☐ Refusal to do something This is the retaliation question, and it produces more viable claims than question 2 does. The standard is broad — Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006) — and the protected activity provisions are separate from the discrimination provisions: 42 U.S.C. § 2000e-3, 42 U.S.C. § 12203, 29 U.S.C. § 215, 29 U.S.C. § 660, 29 U.S.C. § 2615.

4. Did you report anything about money, safety, or the law? ______________ ☐ Internally ☐ To a regulator ☐ To law enforcement Public-company financial reporting — 18 U.S.C. § 1514A. Government contracts and grants — 41 U.S.C. § 4712. False claims — 31 U.S.C. § 3730. Federal employees — 5 U.S.C. § 2302.

5. Were you owed anything on the last day? ______________ ☐ Unpaid wages ☐ Overtime ☐ Commissions ☐ Accrued vacation ☐ Expenses ☐ Bonus earned but unpaid 29 U.S.C. § 206, 29 U.S.C. § 207, and state final-pay statutes, which frequently carry penalties larger than the wages.

6. Were you vested in anything? ______________ ☐ Retirement ☐ Equity ☐ Deferred compensation Vesting is protected — 29 U.S.C. § 1053 — and firing someone to prevent a benefit from vesting is itself unlawful: 29 U.S.C. § 1140. If the termination came suspiciously close to a vesting date, write that date down.

7. Was anyone else let go at the same time? ______________ ☐ How many ☐ Over what period ☐ At what site This is the reduction-in-force screen. See Module 8 and 29 U.S.C. § 2101.

8. Did you sign anything when hired? ______________ ☐ Arbitration ☐ Non-compete ☐ Non-solicit ☐ Confidentiality ☐ Handbook acknowledgment ⚠ Find the onboarding packet before doing anything else. Arbitration agreements are broadly enforced — 9 U.S.C. § 2 — and change the forum, the discovery, and the value.

9. Are you union-represented or acting collectively? ______________ Concerted activity is protected independently of any discrimination law — 29 U.S.C. § 157 and 29 U.S.C. § 158 — and the grievance deadline in a contract is usually days, not months.

Scoring. Questions 3, 4, and 6 produce the strongest claims and are the ones employees least often think to raise. Question 8 determines where the case is heard, which is often worth more than the answer to any other question.

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Module 3 — Severance agreement review grid

One row per clause. Do not skip rows because a clause "looks standard." The standard ones are where the cost is.

Clause	Present?	What it actually does	Change to request
Payment amount	☐	The number	Weeks per year of service, not a flat figure
Payment timing	☐	Lump vs. installments	Lump sum — installments end if the company does
Tax treatment	☐	W-2 vs. 1099 allocation	Confirm withholding; allocate any non-wage portion
General release	☐	Ends every claim, known or not	Carve out: vested benefits, unemployment, workers' compensation, indemnification, accrued wages
Age waiver	☐	ADEA release	Run Module 4. Defective = paid for nothing
Release of future claims	☐	Usually unenforceable, always confusing	Limit to claims through the signature date
Confidentiality	☐	Silence about the agreement	Carve out spouse, tax advisor, counsel, and any government agency
Non-disparagement	☐	Silence about the employer	Make it mutual, and limit the employer's side to named individuals who can actually be controlled
Agency carve-out	☐	Right to file a charge	Must be there. The right to file cannot be released
Reference	☐	What future employers hear	Attach the exact text as an exhibit and name who gives it
Characterization	☐	"Resigned" vs. "terminated"	Affects unemployment. Do not agree to "voluntary resignation" and then claim benefits
Non-compete	☐	Where you can work	Narrow scope, geography, and duration — or delete
Non-solicit	☐	Who you can call	Limit to customers you personally served
Cooperation	☐	Future obligations	Cap the hours and require payment for them
Return of property	☐	Devices and documents	Fine — but demand a copy of your own personnel records first
No-rehire	☐	Bars future employment	Limit to the specific subsidiary, not every affiliate worldwide
Benefit continuation	☐	Coverage subsidy	Specify months paid and who remits
Equity treatment	☐	Vested and unvested	Extend the exercise window; this is often the largest number on the page
Arbitration	☐	Forum for disputes about the agreement	Note it; it may already exist from onboarding
Governing law	☐	Which state's rules	Matters most for the non-compete
Entire agreement	☐	Kills verbal promises	Anything promised in the meeting must be written in, or it does not exist

Use the grid as a scorecard. Count the rows where the answer is "present, unchanged." If that number is above twelve and the payment is under eight weeks, the agreement is doing far more work for the employer than the money is doing for the employee.

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Module 4 — Age waiver compliance test

Apply this whenever the person signing is 40 or older — 29 U.S.C. § 631. Every box must be checked. One unchecked box and the age release fails.

☐ Written in plain language the individual can understand ☐ Refers specifically to rights under the Age Discrimination in Employment Act — a general release of "all claims" is not enough ☐ Does not waive claims arising after the date of signing ☐ Exchanged for consideration beyond what the employee was already entitled to receive — if the handbook already promised the severance, the severance buys nothing ☐ Advises the individual in writing to consult an attorney ☐ Gives at least 21 days to consider — 45 days if the offer is made to a group in connection with an exit incentive or other termination program ☐ Gives 7 days to revoke after signing, and says the agreement is not effective until that period expires ☐ For a group program: discloses the decisional unit, the eligibility factors, the time limits, and the job titles and ages of those selected and those not selected

The consequence, stated plainly. 29 U.S.C. § 626 makes these requirements conditions of a knowing and voluntary waiver. Fail one and the age claim survives — and the employee does not have to give the money back to sue. Oubre v. Entergy Operations, Inc., 522 U.S. 422 (1998). An employer that gets this wrong pays twice: once for the release, and once for the claim the release did not release.

Employer self-audit: ☐ Template reviewed in the last 12 months ☐ Group disclosure prepared by someone who understands "decisional unit" ☐ 45-day period used whenever two or more people are terminated as part of a program

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Module 5 — Negotiation script

The actual words. Adapt the facts; keep the structure.

Opening, by email, within the consideration period:

"Thank you for the separation agreement. I've reviewed it and I'd like to discuss four items before signing: the amount, the reference, the characterization of the separation for unemployment purposes, and the restrictive covenant in paragraph ___. I'd appreciate a response by ______ so that I can sign within the period provided."

On the amount:

"The offer is ___ weeks. Given ___ years of service and the market for this role, I'm asking for ___ weeks. I'd also ask that the company cover ___ months of continuation coverage premiums directly rather than reimbursing them."

On the reference — the most valuable and least expensive item on the table:

"I'd like the reference language attached as an exhibit, and I'd like the agreement to name ______ as the person who provides it. The text I'm proposing is: 'X was employed as ___ from ___ to ___. The separation was part of a restructuring. X is eligible for rehire.'"

On the characterization:

"I'd like paragraph ___ to state that the separation was involuntary and not for misconduct, and that the company will not contest an unemployment claim."

On the covenant:

"Paragraph ___ prevents me from working in the field the company just removed me from. I'm asking that it be deleted, or narrowed to ___ months and to the specific customers I served."

If the answer is no:

"I understand. Before I decide, I want to make sure I've raised this correctly: [state the concern — the leave request in March, the complaint in June, the timing relative to vesting]. I'd rather resolve it here than through an agency."

Three rules for the script. Ask in writing, so the record exists. Ask for four things, not one, because a counterparty that must say no four times usually says yes to two. And never say the word "lawsuit" as a threat — describe the facts and let the reader do the arithmetic. The employer's counsel is running the same triage in Module 2, and a well-stated fact does more than an adjective.

What to do with silence. If the deadline is approaching and there is no response: "I have not heard back and the consideration period ends ______. Please confirm whether the company will extend the period to ______ or whether I should treat the current terms as final." Extensions are granted far more often than they are asked for.

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Module 6 — Mitigation log

Print this. Fill it in weekly. It is the least glamorous module here and the one that most reliably changes the number.

Week of	Applications sent	Interviews	Recruiters contacted	Networking	Offers	Notes

Rules for the log. ☐ Keep every confirmation email in one folder ☐ Record rejections too — they prove effort ☐ Do not decline comparable work. A refused comparable offer can cut the recovery to zero ☐ Record interim earnings, including consulting and gig work — they offset, and hiding them is worse than the offset ☐ Note any job you could not take because of the non-compete — that is evidence in two different fights at once

The principle. Back pay is reduced by what the employee earned and by what the employee reasonably could have earned. The employer carries the burden of proving the failure — but a log that shows sixty applications makes that burden unmeetable, and no log at all makes it easy.

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Module 7 — Records and personnel file request

Send within the first week, by email, to HR — copy to a personal address.

"I am requesting a complete copy of my personnel file, including performance reviews, disciplinary records, compensation and job title history, all documents I signed at hire — specifically any arbitration agreement, confidentiality agreement, non-competition or non-solicitation agreement, and handbook acknowledgment — the summary plan descriptions for the health and retirement plans, my vesting and equity statements, and any written policy governing severance. Please also confirm my last day worked, my last day on payroll, my last day of health coverage, and the date my continuation coverage notice was or will be mailed. Please send these to ______ by ______."

Preserve on your own side, immediately: ☐ Offer letter and every amendment ☐ Pay stubs, W-2s, commission statements ☐ Performance reviews and the emails praising your work ☐ Every text or email about the complaint, the leave request, or the accommodation ☐ Calendar entries for the relevant meetings ☐ The handbook version in effect on your last day

⚠ What NOT to do. Do not download customer lists, source code, or confidential files. Do not forward company documents to a personal account in bulk. Taking documents converts a plaintiff into a defendant, and after-acquired evidence of misconduct can cut off relief from the date it is discovered even where the original termination was unlawful.

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Module 8 — Reduction-in-force and WARN screen

1. How many employment losses at this single site of employment? ______ 2. Over what 30-day period? ______ 3. How many employees does the employer have overall? ______

Threshold met? ☐ Yes ☐ No ☐ Unclear — 29 U.S.C. § 2101

If yes: written notice is required 60 days in advance — 29 U.S.C. § 2102 — to affected employees or their representative, the state dislocated worker unit, and the chief elected official of the local government. Remedy for failure: back pay and benefits for each day of violation — 29 U.S.C. § 2104. ⚠ Severance does not substitute for notice, though payments may offset liability. Check state law: several states have lower thresholds and longer notice periods than the federal statute.

4. Selection criteria. ______________ Ask for them in writing. A "restructuring" in which every selected employee is over 55, or every selected employee had recently requested leave, is a pattern — and in a group age program the disclosure required by Module 4 hands the employee the data to see it.

5. Who absorbed the duties? ______________ A position "eliminated" whose work is now done by someone younger, newly hired, or differently situated is a position that was not eliminated.

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Module 9 — Employer termination protocol

Run before the meeting, not after the charge.

Documentation ☐ Written reason exists before the decision is communicated ☐ Reason matches the performance record — or the record explains the gap ☐ Comparators identified: has anyone else done this and kept their job?

Timing ☐ Any protected activity in the last six months identified and evaluated ☐ Any leave, accommodation request, injury report, or wage complaint identified ☐ Any vesting, bonus, or commission date within 90 days identified

Process ☐ Second decision-maker reviewed ☐ Counsel reviewed where any box above is checked ☐ Final pay computed to the state deadline ☐ Benefits notices scheduled — 29 U.S.C. § 1161, 29 U.S.C. § 1166 ☐ WARN screen run (Module 8) ☐ Age waiver test run (Module 4)

The meeting ☐ Two people present ☐ Brief and factual ☐ No pressure to sign anything on the spot ☐ Written summary of logistics provided

After ☐ Reason stated consistently to the employee, the state agency, and any charge response ☐ Reference protocol communicated to managers ☐ Access terminated, property returned, litigation hold issued if a claim is foreseeable

One rule dominates all of the above. The employer's stated reason will be repeated four times — in the meeting, in the letter, to the unemployment agency, and in the position statement. Under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the employer's burden is only to articulate a legitimate reason — but articulating four different ones is how a defensible termination becomes a jury question.

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Reference table — governing authorities

Subject	Authority	What it governs
Discrimination	42 U.S.C. § 2000e-2	Race, color, religion, sex, national origin
Coverage and definitions	42 U.S.C. § 2000e	Who is an employer and an employee
Retaliation	42 U.S.C. § 2000e-3	Opposition and participation
Charge procedure	42 U.S.C. § 2000e-5	180/300 days; right to sue
Age	29 U.S.C. § 623	Discrimination at 40 and over
Age waivers	29 U.S.C. § 626	Knowing and voluntary release
Age coverage	29 U.S.C. § 631	The protected class
Disability	42 U.S.C. § 12112	Discrimination and accommodation
Disability definitions	42 U.S.C. § 12111	Qualified individual; undue hardship
Disability retaliation	42 U.S.C. § 12203	Interference and coercion
Race contracts	42 U.S.C. § 1981	Longer clock, no exhaustion
Leave	29 U.S.C. § 2612	Entitlement
Leave interference	29 U.S.C. § 2615	Interference and retaliation
Leave enforcement	29 U.S.C. § 2617	Damages and limitations
Mass layoff notice	29 U.S.C. § 2102	60-day notice
Wages	29 U.S.C. § 206	Minimum wage
Overtime	29 U.S.C. § 207	Hours over forty
Wage retaliation	29 U.S.C. § 215	Complaint protection
Safety retaliation	29 U.S.C. § 660	30-day complaint window
Benefit interference	29 U.S.C. § 1140	Firing to prevent vesting
Vesting	29 U.S.C. § 1053	Minimum standards
Plan enforcement	29 U.S.C. § 1132	Suits for benefits
Continuation coverage	29 U.S.C. § 1161	Who may elect
Concerted activity	29 U.S.C. § 157	Protected collective action
Arbitration	9 U.S.C. § 2	Enforceability of the agreement
Corporate whistleblowing	18 U.S.C. § 1514A	Public-company reporting
False claims	31 U.S.C. § 3730	Retaliation and qui tam

Leading cases: McDonnell Douglas (the framework) · Bostock (sexual orientation and gender identity) · Burlington Northern (retaliation's broader standard) · Muldrow v. City of St. Louis, 601 U.S. 346 (2024) (some harm, not significant harm) · Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) (but-for causation in age cases) · Babb v. Wilkie, 589 U.S. 399 (2020) (federal-sector age standard) · Oubre (defective waivers).

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Reference table — the calendar

Day	What happens
0	Meeting. Do not sign. Module 1
1	Written account. Unemployment application
2–7	Module 7 request. Module 2 triage
7–21	Module 3 review. Module 5 negotiation
21 / 45	Consideration period ends
+7	Revocation period ends
Ongoing	Module 6 log, weekly
≤180 / 300	Charge filed
+90	Suit after right-to-sue letter

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Reference table — what the words mean

The agreement says	It means
"General release of all claims"	Everything, including claims not yet known
"Knowing and voluntary"	The Module 4 test — a legal term, not a description
"Consideration"	Something beyond what was already owed
"Decisional unit"	The pool from which selections were made — the disclosure that reveals the pattern
"Nothing herein prevents filing a charge"	The required carve-out. Its absence is a red flag
"Non-disparagement"	Usually one-directional unless made mutual
"Cooperation"	Unpaid future work unless capped and paid
"Eligible for rehire"	The most useful sentence in any reference clause
"Entire agreement"	The verbal promise is gone
"Voluntary resignation"	May forfeit unemployment

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