Ask A Mentor: How Can I Negotiate My Separation Agreement?

In this installment, Kate Reder Sheikh at Major Lindsey & Africa discusses how a law firm associate can navigate being let go from their job, what they should look for in a separation agreement and why they should be upfront with prospective employers.

Q: I'm worried about the prospect of losing my job amid news of recent layoffs at law firms in the face of economic uncertainty. If I do get laid off, what are some ways I can ensure the separation agreement is the best it can be to help me in my transition? —Associate at BigLaw firm

These are stressful times, but the good news is that you're self-aware and asking the right questions.

I work with associate and partner candidates in the Bay Area and Colorado. All day I am on the phone with lawyers, many of whom have either been recently laid off or are being managed out. In the latter case, there isn't a set date by which they have to leave, but they are told to find a new role and wind up what they're doing at their current firm. I know this all feels very stark coming out of the boom time we've just unceremoniously exited.

What elements should you be looking for in your separation agreement?

1. Your ideal situation in the current market is three months of website time, pay and benefits. Anchor on this. You may come out below this, but it's the right place to start.
2. Determine what is included in the package — _in addition to pay and website time, this may include a continuation of your benefits, vacation pay and outplacement services.
3. Ask how the firm will handle inquiries from potential employers. The best outcome here may be a neutral confirmation of employment and recommendations from specific partners of your services to future employers. Ask partners who have been invested in your development to serve as personal references.
4. Review any confidentiality clauses, if applicable. It is very tricky to go to the market to find a new job when you can't disclose the nature of your exit from your previous employer.
5. Consider the tax implications of a lump sum severance payment, if applicable.
6. Confirm whether there is a release of claims.

How can you get what you want out of this painful negotiation?

First, rely on your previous positive performance reviews, if applicable. The same goes for written kudos from colleagues or clients. Point them out to the powers that be. Bring the receipts, if the praise is in writing.

Second, point out your metrics — _chiefly, your hours billed and the work you've brought in. Lean into your corporate citizenship, including leadership positions in employee resource groups, relevant cross-selling and personal branding that positively impacted the firm.

Third, rely on your relationships with partners who can rally to your defense. It is understandable to use some pathos in this context.

If you don't have a history of starkly positive reviews or partners willing to spend some political capital on your behalf, candidly you are very low on leverage. In that case, it's best to leave peacefully. It's not worth blowing up your reputation to try to get a minimally better result here.

My dad is long retired, but was a corporate law partner. His best career advice to me — _applicable to my previous career as a litigator and my current one as a recruiter — _is that it's a long life in a small town. Act accordingly.

I have another core piece of advice regarding having been laid off: Unless you have a compelling, individual reason not to, own the layoff with prospective employers.

If it looks like you've hidden the ball — if they later find out that you were let go and didn't disclose — you're in a bad spot. You will either not get the offer or will start out your new job living in fear of suddenly losing their trust if the truth comes out. Either option is suboptimal.

Many of my clients — both in BigLaw and in the top tier of boutiques — are receptive to speaking to folks who have been laid off by their last firms if they match a pressing need. However, they have been uniformly clear that they want to know the full fact pattern before pitching the candidate to the partners.

If you're asked about the terms of your departure from your last firm, in the case where your recruiter discloses it in the cover letter, I recommend being positive and forthright. "I was impacted by the reduction in force at my firm. It's been hard, of course, but I have a lot of really positive things to tell you about my experience there."

Being laid off is traumatic — especially in a down market with fewer job options than would be optimal. I am sorry if you're in this position. As someone who was laid off in 2008, I empathize completely.

Hindsight being 20/20, the layoff was a blessing. I was miserable in my role, and moving on — something I wouldn't have done with any alacrity but for being let go — was the best possible outcome for me.

I found a new job at a firm that treated me well. It is my hope that you'll be able to say the same thing down the line, and I wish you the best possible luck with your transition.