Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Friday, October 12, 2012

Why Did the Lawyer Put This in My Severance Agreement?: The Cooperation Clause

This continues my series of posts deconstructing the legal gobbeldy-goop in employment agreements. Today I'll talk about a clause I often see in severance agreements: the cooperation clause. It may look something like this:

Employee agrees to cooperate with Employer in connection with any legal matters, if so requested by the Company, including agreeing to make himself available at the Employer's request to assist with matters requiring the provision of information and/or testimony.

Yikes! My clients never like this and neither do I. And really, what good do most employers think is going to come from having an employee they axed testify on their behalf? My first response is usually to ask that this be taken out of the agreement. However, management-side attorneys love these clauses, so here's what I usually do that will work.

First, I ask for language something like this:
Such cooperation shall be arranged so as not to interfere with Employee's employment and/or business.

That way I don't have to worry about the jerk employer who says the employee has to come in during the key sales meeting, the peak busy time, or their first day at a new job. If the employer wants cooperation, they can arrange it after hours or on a weekend so the employee doesn't get fired from their new job. If they want a deposition, same thing. Depositions can be scheduled to work around times that will get the employee fired from their new job. Without this language, the employer can say, "Tough tookies," when the employee cries foul.

The other language I ask for is that the employee be paid for their time. While they probably can't be paid for their time testifying, I want to make sure my client doesn't become an indentured servant forced to help their former employer respond to complicated discovery requests or submit to endless deposition preparation sessions. Even if it's a deposition, the employee should be compensated for their expenses, such as parking fees, gas mileage, and other out of pocket expenses incurred in this cooperation.

Forcing an ex-employee to work for free probably violates the Fair Labor Standards Act in any event, so even if payment isn't in this clause, an employer who goes too far with their demands might run afoul of the Department of Labor.

5 comments:

  1. I always had this clause in high level employees severance agreements, but also included the actual hourly rate they would be paid for doing so.

    Never thought about putting in a clause about it being at their convenience, though. No one ever objected to it.

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    1. That's because they weren't represented by me! Also, because you aren't in South Florida, so they haven't encountered some of the jerkish employer behavior that we see down here. I've seen former employers claim someone was in breach if they didn't drop everything on short notice during a key business conference, their first week in a new job or peak sales time to "cooperate" for free.

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    2. I worked in pharma, which people see as an evil industry, but honestly, we treated people well and our competitors did as well. We knew that even if we laid you off today, we may need you tomorrow, so we tried to do it as nicely as possible.

      And wouldn't it have been awesome if you had been one of the attorneys I dealt with? You would have liked dealing with our employment attorneys as well, as they were utterly rational. When ever someone's attorney came back with a remotely reasonable request, the answer was, "Sure! We'll make the change and send you a new copy of the release."

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    3. As it should be! I love dealing with rational opposing counsel. Sometimes there's a mentality of "screw the employee" that causes the folks on the other side to dig in on stupid things.

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  2. Hmm, I don't even remember reading or signing any fine print like this. I might have to bring it up during one of our next sales meetings! This legal stuff sure can be tricky!
    -Jon

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