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Mansell Law NYC

NYC Executive Severance Negotiation Lawyer

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A company’s first severance offer to an executive is rarely its best offer. It is drafted by the company’s lawyers to secure a broad release of claims at the lowest reasonable cost. Mansell Law negotiates severance and separation agreements for executives, C-suite leaders, managing directors and senior professionals in New York City and nationally, with the goal of securing the strongest available exit package and protecting what you have already earned.

Is Severance Negotiable?

In most cases, yes. New York does not generally require an employer to pay severance, which means severance is usually a negotiated exchange: the company pays more than it otherwise owes, and you release potential claims and agree to post-employment terms. The value of what you give up, and the strength of what you can credibly assert, drive the negotiation. Your employment agreement, offer letter, equity plans or a company severance plan may also create rights that the first offer does not fully reflect.

Sources of Leverage in an Executive Severance Negotiation

  • Contract rights. Severance multiples, good reason definitions, notice periods and change in control protections in your agreements.
  • Potential claims. Facts suggesting discrimination, harassment, retaliation, whistleblower retaliation or breach of contract can change the company’s view of risk.
  • Equity and deferred compensation. Unvested awards, performance shares, exercise windows and deferred bonuses are often where the most value can be recovered. See Executive Equity Compensation.
  • The release itself. The company wants a clean, enforceable release. Your cooperation, timing and transition support have real value.
  • Restrictive covenants. Narrowing or waiving a non-compete or non-solicit can be worth as much as additional cash. See Non-Competes and Non-Solicits.
  • Reputation and messaging. How your departure is announced, references, and mutual non-disparagement matter to executives in a close-knit industry.

What Can Be Negotiated

  • Additional months of salary continuation or a lump sum
  • Prorated or full annual bonus
  • Continued vesting, accelerated vesting or cash in lieu of forfeited equity
  • Extended option exercise periods
  • Company-paid COBRA continuation coverage
  • Characterization of the departure, such as resignation rather than termination, or termination without cause
  • Agreed announcement language, references and mutual non-disparagement
  • Narrowed, shortened or waived restrictive covenants
  • Outplacement services, legal fee reimbursement and transition timing
  • Release terms that carve out vested benefits, indemnification and D&O insurance coverage

Deadlines and Rules That Matter

  • Age discrimination releases. For a release of federal age discrimination claims to be valid, employees age 40 and older generally must be given at least 21 days to consider the agreement (45 days in a group termination program) and 7 days to revoke after signing under the Older Workers Benefit Protection Act, 29 U.S.C. § 626(f).
  • Confidentiality of discrimination claims. New York General Obligations Law § 5-336 restricts confidentiality and related terms in agreements resolving discrimination, harassment and retaliation claims. Federal law, including the Speak Out Act, also limits enforcement of certain nondisclosure and nondisparagement clauses in sexual harassment and sexual assault disputes.
  • Layoffs. Larger employers conducting mass layoffs or plant closings may owe advance notice under the federal WARN Act and the New York WARN Act, which can affect what an affected executive is owed.
  • Equity and option deadlines. Post-termination option exercise windows can be short, and deadlines continue to run while you negotiate.

How Our Executive Severance Process Works

  1. Confidential review. We review your agreements, equity documents, the proposed separation agreement and the facts of your departure.
  2. Valuation. We quantify what you stand to lose and what you may be owed under each scenario.
  3. Strategy. We decide together whether to negotiate behind the scenes or directly with the company and its counsel.
  4. Negotiation. We present your position, respond to counteroffers and negotiate the economic and non-economic terms.
  5. Final agreement. We review the final language so the deal you negotiated is the deal you sign.

Learn more about our representation of executives, our general severance review and negotiation practice, and our in-depth guide to the negotiability of severance agreements in NYC.

Frequently Asked Questions

Should I hire a lawyer if the company says the offer is final?

Often, yes. “Final” offers are frequently improved when an executive identifies contract rights, equity value or potential claims the company has not accounted for.

Will negotiating cause the company to withdraw the offer?

Companies rarely withdraw an offer simply because an executive negotiates professionally through counsel. We assess that risk with you before making any request.

Can I negotiate if I resigned?

Possibly. If you resigned for good reason as defined in your agreement, or if you have potential claims, there may still be room to negotiate. Have your situation reviewed before assuming you have no options.

How are legal fees handled?

Fee arrangements depend on the matter. Ask us about the options during your consultation, and remember that legal fee reimbursement can sometimes be negotiated as part of the package.

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Talk to an Executive Employment Lawyer Before You Sign

If you have been terminated, offered a separation agreement, or believe your firing or treatment at work violated the law, contact Mansell Law for a confidential consultation. Call (646) 921-8900 or contact us online.

This page provides general information, not legal advice, and does not create an attorney-client relationship. Prior results do not guarantee a similar outcome.