Severance Leverage: What Moves an Offer

Employee Handout · New York

No law requires severance. The first offer is the lowest number the employer thinks will buy your signed release. It moves when you show legal risk the employer did not price in.

1 · What Creates Leverage

A. A credible legal claim

Whistleblowing. You reported or objected to conduct you reasonably believed broke a law (NYLL §740). Healthcare workers: §741. Wage or hours complaints: §215.

Discrimination and retaliation. NY State Human Rights Law: you were treated less well because of a protected trait. NYC Human Rights Law: retaliation is any act reasonably likely to deter a complaint.

Unpaid wages. Final pay is due by the next regular payday (§191). No deductions outside the statute’s list (§193). Missing wage notices or pay stubs (§195). Remedies: 100% liquidated damages, attorney’s fees, 6-year lookback (§198).

B. Timing

Fired soon after a complaint, an accommodation request, or medical leave. Timing alone raises an inference of retaliation. It carries weight when paired with:

▪ strong reviews, a raise, or a bonus right before

▪ reasons that change (“restructuring” becomes “performance”)

▪ skipped discipline steps the company normally follows

Zann Kwan v. Andalex Grp., 737 F.3d 834 (2d Cir. 2013)

C. Inside knowledge

Compliance role, regulated industry, or ethics concerns raised to leadership. Frame it as a shared interest in a private, clean exit. Never offer silence for money; that is extortion (Penal Law §155.05(2)(e)).

2 · What Kills Leverage

▪ “It was unfair” with no dates or facts

▪ Anger, accusations, or long narratives

▪ Discrimination claims with no documents, witnesses, or timeline

▪ Overvaluing ordinary workplace friction

▪ Raising it at the deadline. Negotiating does not pause the clock.

▪ Threatening a lawsuit you will not file

▪ Signing first. Once the revocation period ends, it is over.

3 · How to Ask

1 Calm and professional

2 Active voice. No “I feel.”

3 Plain English, no citations

4 Dates, documents, sequence

5 Short beats long

6 Ask for what they control

Sample: “On March 3, I emailed HR about unpaid overtime. On March 17, I was placed on a PIP. On April 1, I was terminated. My last two reviews rated me ‘exceeds expectations.’ I would like to revisit the severance terms and resolve this cleanly.”

Ask for: more severance pay · lump sum · paid COBRA months · neutral reference · mutual non-disparagement · legal fee reimbursement.

Skip: pension or benefit-plan formulas, tax withholding, perks fixed by written policy.

4 · Check the Agreement

Under NY General Obligations Law §5-336, a release of discrimination, harassment, or retaliation claims is unenforceable if the agreement:

✕ charges liquidated damages for breaking confidentiality or non-disparagement

✕ claws back severance for that breach

✕ makes you state you were not discriminated against or retaliated against

Confidentiality of the underlying facts must be your stated preference, with up to 21 days to consider and 7 days to revoke.

True Whether or Not You Sign

▪ Earned wages and commissions are owed. Accrued PTO is owed unless a written policy says it is forfeited.

▪ No agreement can bar you from filing with or speaking to the EEOC, NYS Division of Human Rights, or other agencies.

▪ Age 40+: 21 days to consider (45 in a group layoff) and 7 days to revoke (federal OWBPA).

General information, not legal advice. Have an employment lawyer review the agreement before you sign.