Lost Your Job? Know When to Fight Back
Do you think you may lose your job? Have you already received notice?
Consider these three ways of fighting back when you predict, or know, that you will lose your job.
- Propose work alternatives to your employer so you can keep working.
- Negotiate to get as much as possible when you leave.
- Take legal action if you are a victim of discrimination or have been treated unlawfully.
Work Alternatives You Can Explore
If your employer gave you notice that you will be laid off or fired, you may not feel like fighting to keep your job. But exploring ways to keep working, even for a short time, might be worth it.
The National Employee Rights Institute suggests these possible steps:
- Follow your employer's procedures to complain or file a grievance about losing your job.
- Find the person who has the power to reinstate you, or who could persuade the person who has that power, that you are too valuable to let go.
- Ask to be put on probation to prove yourself, if poor performance is involved.
- Ask for a transfer to a different job elsewhere in the organization.
- Propose a part-time schedule with full benefits.
- Suggest that your employer contract with you as an independent consultant.
- Ask for retraining for a different job.
- Propose a different pay package, if you think your high salary is a problem for your employer. A lower salary with performance-based bonuses may work.
Whatever steps you take, stay calm, treat each conversation as a business meeting, and don't burn your bridges behind you.
Know What You Deserve - and Negotiate for More
When an employer fires or lays off a worker, the employer must:
- Give you your last paycheck within a certain amount of
time.
The amount of time differs in each state. Sometimes it is immediately. In most states, you must receive your final pay by the end of the next pay period.
- Tell you about your right to continue getting group health
insurance.
If you belong to your employer's group health insurance plan before you are fired or laid off, you have the right to continue in that plan. COBRA (Consolidated Omnibus Budget Reconciliation Act) guarantees you this right. But you have to pay the full health insurance premium (usually a monthly cost). Your employer can add an administration fee of up to two percent to the premium.
- If you ask, give you written information about your pension,
401(k), or profit-sharing benefits. You probably received this
information when you started at your job. Get the most recent
descriptions when you leave. You will need this information
later, when you want your pension benefits to begin.
Ask your pension plan administrator, if your employer does not give you this information. Under ERISA (Employee Retirement Income Security Act), you have the right to see all the documents about your pension or other retirement benefits.
Employers are not required to pay you for unused or accrued vacation or sick leave or other benefits. However, your employer may have a practice or policy to pay accrued benefits to employees they fire or lay off. In that case, you do have a right to be paid for such benefits.
Employers are not required to pay severance benefits. You may have heard that laid-off employees always get a week or more of pay for every year they worked for their employer. Some employers do pay severance benefits like this, but no law says they have to.
Ask for one or more of these, whether or not your employer regularly provides benefits to laid-off or fired employees:
- Several weeks of pay
- Extra weeks added to regular severance pay
- Transfer severance pay, which is taxable, to other benefits you need, like health insurance
- Accrued leave
- Several weeks or months of health insurance coverage
- Help paying for your COBRA health insurance premium for a few months
- Favorable adjustments to your pension benefits
- An official letter in your file, describing your work and your leaving in positive terms, or positive reference letters
- Removal of negative reports in your personnel file
- A long-term, interest-free loan
- Mail forwarding
- Continued use of your voice mail
- Use or purchase of a company computer
- Your employer's agreement not to deny your unemployment insurance claim
- Out-placement services
If your employer offers more than what you are otherwise entitled to, they may ask you to sign a waiver or release agreement. This agreement is typically signed when you receive severance benefits. Your signing of a waiver must be "knowing and voluntary" and the waiver must meet all of the following conditions:
- The waiver must be part of an agreement that is written in plain language.
- The waiver must specifically refer to rights or claims arising under the ADEA.
- You may not waive rights or claims that may arise after the date the waiver is signed.
- You may waive rights or claims only in exchange for money or other benefits that exceed those to which you would already be entitled.
- You must be advised, in writing, to consult with an attorney prior to signing the agreement.
- You must be given at least 21 days to consider the agreement before signing it.
- You must be able to revoke the agreement within 7 days of signing it.
Taking Legal Action
Your employer has fired you or laid you off. You think that your employer may have violated a law that protects you. What should you do?
- Get all the information you can about your employer's decision. Make sure you understand the decision.
- Get as much information as you can about the law you think has been violated. Check both federal and state laws. Find out if your local government also has a law related to your situation.
- If your information shows a possibility that your firing or
layoff may be illegal:
Meet with your employer to discuss the situation. Be clear about your rights. Try to resolve the problem.
Document everything that has happened. Write down all the details while they're fresh in your mind.
Collect all the documents that show what has happened.
Make a list of other employees who know what happened. Be sure to know how to contact them later.
- Be very careful about signing anything. Ask for time, even a couple of weeks, to review any documents your employer gives you.
- Get advice from an attorney if you're not sure if your
firing or layoff is illegal. Pick a lawyer who specializes in
employment law. Get a referral from your local bar association,
or contact the National Employment Lawyers Association
(NELA).
Use their Web site or write to get a list of lawyers near you:
National Employment Lawyers Association
Attorney Listing
44 Montgomery Street, Suite 2080
San Francisco, CA 94104
Sometimes an employment lawyer can work with you behind the scenes. You can get advice about resolving the problem with your employer, or leaving your job under the fairest possible conditions.
You can also get advice about how to file a charge of discrimination.
- Contact the Equal Employment Opportunity Commission (EEOC) at
1-800-669-4000 or www.eeoc.gov to find out where the closest EEOC
field office is. Get details on exactly what you have to do to
file a charge.
The EEOC is the federal agency in charge of enforcing anti-discrimination laws. These laws include the ADEA, ADA, Title VII, and the Equal Pay Act.
Time frames for filing a charge are very strict. Act as soon as you think you are a victim of discrimination.
- Check with AARP's Foundation Litigation to see if AARP may be able to represent you in a discrimination case due to age or disability. AARP requires that the problem you experienced affects both you and many other older people. In this way, AARP can have a large impact on problems affecting older workers.
- Be very careful about deciding to sue your employer. Suing your employer is long, complex, and expensive, even when you are in the right. Look at all your options before you decide on legal action.
AARP Resources
AARP
Foundation Litigation - How We Can Help You
If you need legal help, check here to see if your case qualifies
for AARP's help.
AARP on
Private Health Insurance
Several articles on your rights to health insurance if you lose
your job.
Additional Resources
Equal Employment
Opportunity Commission
Answers to questions about the laws, what practices they
prohibit, what employers are covered, and how to file a
discrimination charge.
National Employment Lawyers
Association (NELA)
Find NELA lawyers in your state.
Books
Find these books online at Barnes and Noble.com
Fired, Downsized, or Laid Off: What Your Employer Doesn't Want You to Know About How to Fight Back, Alan L. Sklover, Henry Holt and Company, 2000. Many helpful examples of what works best to protect yourself.
