What is severance, anyway? And who gets it? And how much?

Many of our clients call us for the same reason:  something is wrong at work, and they need to plan their next step. 

Sometimes our clients were just fired—maybe for a bad reason, maybe for a good reason, maybe for no reason at all.  Other times our clients have not been fired yet, but the writing is on the wall.  Still other times everything is great at work, but a promising new opportunity has come along, and our client needs to figure out how to put her old job behind her.

In any of these circumstances, one of our first questions is often: "Do you want us to try to negotiate a severance?" 

A "severance" is what lawyers call it when an employer makes a final payment to an employee, above and beyond the final paycheck.   A severance can be as small as a week or two of salary, or as large as the cash value of an entire company.   But no matter how much good feeling exists between you and your former employer, if they are paying you a severance, it's because they want something from you.

Typically what an employer wants is to be sure that the departing employee won't ever show up again, asking for more money.  This is why many employers demand that terminated employees sign a so-called severance agreement or separation agreement.  And let us pause here to say:  It is almost never a good idea to sign a severance agreement you do not fully understand; and it is almost never a good idea to sign a severance agreement without at least the opportunity to consult with an attorney.

The terms of severance agreements vary widely, but usually their most important provision is a release or waiver.  See below for links to articles explaining common severance agreement provisions.  The employer pays the employee some money; and the employee signs away any claim to ever getting any more money from the employer.

So how much severance should an employee get?  There is no simple rule, but if you have something of value that your company wants, they should pay you for it.  Here are some common examples of things you might have that your company should pay you for:

A claim to unpaid wages.  Say, for example, you were paid to work eight hours a day, but your company expected you work through your lunch break.  You might have a claim to the wages you were not paid for all those lunch hours you worked.   If your company wants you to release that claim, you could demand a severance.

  • Good relationships with clients or customers.  Say, for example, you worked as an accountant, and your former employer wanted to make sure that you did not compete for their clients by opening up your own accountancy on the other side of the street.  If they ask you to sign a non-compete, you could demand a severance.
  • Know-how, trade secrets and intellectual property.  Say, for example, you worked at a start-up and know everything there is to know about how to write the code for the next big thing on the Internet.  Your company might as you to sign a nondisclosure agreement, or NDA, so ensure you don't share what you know.  You could demand a severance.
  • Stock or shares or equity in the company.  Say you were a part-owner or a shareholder in the company that you are leaving.  Even if the company is worth nothing today, the other owners might want you to sign a document giving up your claims to the company.  You could demand a severance.
  • Legal claims against the company.  Say, for example, your boss fired you while you were on medical leave, or stopped giving you raises when he learned about your faith or your family situation, or gave you less overtime when you did not return his "flirting," or expected you to work in unsafe conditions because you are not a U.S. citizen.   You might have a claim against your former employer.  If your employer asks you to waive your claims, you could demand a severance.

In future blog posts, we will discuss these different situations, and some common ways they impact our clients' ability to negotiate severances.  But if something is wrong at work, and you need to plan for your next step, Granovsky & Sundaresh is here to help.  Feel free to call or e-mail us any time.

Explain My Severance - Part 1:  The Release

Explain My Severance - Part 2:  The Neutral Reference

Explain My Severance - Part 3:  Non-Disparagement Clause

Explain My Severance - Part 4:  Non-Admission Clause

Explain My Severance - Part 5:  No Re-Employment Clause

Explain My Severance - Part 6:  No Consideration Absent Execution


My Boss Sent Me a Dick Pic. What Should I Do?

A woman telephoned our law firm the other day to ask one of the starkest questions we've ever heard:  “So, my boss texted me a dick pic last night.  What do I do?” 

It's an infuriating fact of life: women who want nothing more than to have a good career and earn a good living confront some ugly behavior by men.  Sometimes that behavior is outright illegal; sometimes it is merely disgusting.  In either case, it can be helpful to have the advice of an employment lawyer.

So, if your boss emails you a picture of a penis, or if he texts you a selfie of himself in underwear, or if sends you a link to porn, what should you do?

First – Save the message.  You don't have to look at it again, just save it somewhere that it can't be deleted.  For example, if he sends you a picture can only be viewed from your work computer, take a picture of it on your personal phone.  The photo may be repulsive, but it is important evidence.  And the first thing you can do to stand up for yourself and protect yourself is preserve that evidence.

Second – Give yourself some time to think.  Do you like your job, and want to stay?  Or would you prefer to negotiate a severance and move on with your career elsewhere?  Do you want your boss to be fired, or do you want to be able to work with him the future, and move on from this stupid incident?   Do you prefer to handle the situation yourself, or do you want someone else to be your adviser and advocate?   

Third – As the saying goes, "First plan your work, then work your plan."  If you want to leave your job and get a severance, you might want to call an employment lawyer.  If you want to stay at your job, but have your boss disciplined, you might want to report the incident internally.  If you want to handle it privately, you may want to message your boss directly. 

But no matter what, you absolutely do not have to take that sort of nonsense from your boss.  If your boss is harassing you with dick pics or naked selfies or porn, you can contact an employment lawyer and fight back.  Call or e-mail us any time.  We are here to help.


Can I Be Fired While On Disability Leave?

Can I be fired while I am on disability leave – what’s the deal?

Short answer – yes, but....

Can I be fired while I am on disability leave –but I’m on short term/long term disability leave?

Short and Long Term disabilities are not job protected.  But, there are cases where you may qualify for leave under the FMLA and/or the ADA.  The FMLA provides you with job protection, and the ADA protects you from discrimination on the basis of your disability.  We detail your protections under the FMLA and ADA below.

Can I be fired while I am on disability leave –isn’t it discrimination?

Not necessarily, but it might be.  There are plenty of legal reasons for an employer to fire you.  One reason may be that you are on leave indefinitely and that cannot be accommodated by the employer.  Another reason may be economic/business necessity.  Just because you were terminated and disabled/on leave is not enough – you need to prove that you were terminated because you were disabled/on leave.

The Americans with Disabilities Act (“ADA”) prohibits employment discrimination on the basis of disability (or perceived disability).  The ADA also requires the employer engage in an “interactive process” to determine whether your disability can be “reasonably accommodated.”  Sometimes, a leave of absence may be a reasonable accommodation – at a minimum, your employer is required to investigate/consider (i.e. engage in the interactive process) whether this is possible.

Ultimately, it comes down to why the employer made the decision to terminate.  If the decision is made because of your disability, it very well may be illegal.

Can I be fired while I am on disability leave –what about the FMLA?

The Family Medical Leave Act (“FMLA”) is a federal law that applies to employers that have 50 or more employees. Under the FMLA certain employees may take up to 12 weeks of unpaid leave for certain reasons, like a serious health condition.  Although FMLA is “job-protected” (meaning you should be returned to your prior or equivalent position), you can still be terminated while on FMLA if the reason is not related to the leave and is not otherwise not discriminatory.   If your employer can show that the decision to terminate is unrelated to the FMLA leave, it is legal.

I was fired while I was on disability leave - What should I do?

Call us!  Or e-mail.  We can help. 

Your Questions About Overtime Answered

Answers to some of the most frequently asked questions about overtime

How is overtime calculated?

Your overtime rate depends on your regular rate of pay.  Your overtime rate of pay is calculated by multiplying your regular rate by one and a half.  

  • Figure out your regular rate.
  • Multiply your first 40 hours in a week by your regular rate (straight time).
  • Multiply your hours beyond 40 in a week by 1.5x your regular rate (overtime).
  • Add your straight time to your overtime (if this does not match what you are actually being paid, call an employment lawyer).

What is my “Regular Rate”?

Your regular rate of pay is what you are paid for your first 40 hours in any given week.  It should be spelled out for you by your employer, but can get confusing if, for example, you are paid a weekly salary irrespective of hours worked.  A good rule of thumb is to calculate your regular rate of pay by dividing your weekly (pretax) wages by 40 hours.  This formula does not work in every case, but it is a good enough starting point. 

Am I eligible for Overtime?

The Fair Labor Standards Act (FLSA) divides workers into two categories:  exempt (exempt employees ARE NOT entitled to overtime) and non-exempt (non-exempt employees ARE entitled to overtime).  Employers frequently accidentally or deliberately misclassify their employees as being exempt when they are in fact not exempt from federal and state wage laws.

Generally under New York and Ohio overtime wage laws, all non-exempt employers must pay their employees time and a half (1.5x) pay for each hour spent working in excess of forty hours per workweek.

There is a complicated test to ascertain whether you fall into either category, but below are three general categories of workers that are considered exempt:

Can I Get Overtime if I am Paid a Salary?

Whether or not you are entitled to overtime depends on what you do – not whether you get a salary or not.  But, in any case, the first question is often whether you are truly a salaried employee. If any of these are true you may not be a salaried employee:

  • your pay gets cut if you miss part of the work day,
  • your paid time off is deducted from your leave bank or PTO,
  • you make less money when business is slow,

Even if you are salaried, you are still not exempt from overtime unless you also have exempt job duties. If you believe you have been incorrectly categorized, consult with an overtime lawyer.  Employers who are not sure how to categorize employees should talk with an overtime lawyer as well to make sure they are in compliance with all applicable overtime wage laws.

Why would my employer pay a salary if I am entitled to overtime?

Some employers often intentionally misclassify employees as exempt in order to save money.  Others just make mistakes.  Either way, they are breaking the law.

How can I recover unpaid overtime wages?

If your employer or former employer did not pay you time and a half for overtime and you are not exempt from federal and state wage law requirements, we can fight on your behalf to recover your unpaid wages.  An successful plaintiff in an unpaid overtime case may be entitled to recover liquidated damages, or double the amount you were underpaid, plus fees, costs and interest.

What should I do?

Contact an overtime lawyer.  You can call or e-mail us any time.  You will be speaking to an experienced lawyer well-versed in federal and state overtime laws today.




Can I Get Overtime Even Though I am Salaried?

Overtime and Salary

If you suspect that you are being denied some of your hard-earned wages, you should call or e-mail us today.  We have lawyers standing by.  You might be entitled to compensation - find out if you are.  All initial consultations are free.

Whether or not you are entitled to overtime depends almost entirely on what you do - not whether you are paid a salary or not.  Depending on your job function, you may or may not be exempt.  For more information on overtime exemptions, click here.   You are probably entitled to overtime (even if you receive a salary) if:

  • Your pay is reduced if there is no work; or
  • You receive less pay if you only work for part of a day; or
  • Your salary is docked because you missed a day (or more) of work.

If you are working a ton of hours for a salary, it is entirely possible that your employer is taking advantage of you by paying you a salary when you are entitled to overtime. Call us, get a consultation and make an informed decision.  You can be on the phone with an overtime lawyer today.

Why would my employer pay me a salary instead of hourly?

Employers often intentionally misclassify employees as salaried workers who are exempt from receiving overtime in order to save money. To be “exempt”, an employee must generally be an executive, administrative, or professional employee. Companies will try to fit employees into these categories even where overtime wage laws do not allow for it.

Some employers do not understand the difference between exempt and non-exempt employees.  These employers should talk to an overtime attorney to make sure they are following all applicable laws.

Call or email us today for a free consultation.  You can speak with a lawyer today.

Mutual Non-Disparagement Clauses in Severance Agreements

You may think you want a mutual non-disparagement clause in your severance agreement, but you probably don't need it.

Why You Should Never Sign a Severance Agreement Right Away

It has to be tempting to sign a severance agreement right away.  You were just terminated, you are probably wondering about how you are going to pay bills, make ends meet, find your next job, etc.  The severance you’ve been offered seems like a lifeline.  Maybe it is...

But You Should Never Sign a Severance Agreement Right Away.

Your severance agreement was written specifically to help your employer – not you.  Thus, your severance agreement makes you give up nearly every right you have under federal, state and city law, like claims for discrimination, breach of contract, defamation, unlawful termination, human rights violations, and certain wage payment laws.  The agreement may also prevent you from working for a similar employer, from contacting your former co-workers or clients, and making certain statements about the company.

Your employer also drafted the severance agreement to protect itself in the event that you breach.  For example, your agreement probably permits your employer to seek “injunctive relief” or to seek attorney’s fees in the event of a breach of the agreement (but does not permit you to seek attorney’s fees if the company breaches).

Your employer also drafted the severance agreement with an offer of payment.  That offer may not properly value the claims you are giving up, your contribution to the company, or your personal circumstances.  When I used to advise companies about how to draft severance agreements, I would always give them the following advice:

“You should offer the minimum amount that this person would accept to shut up and go away forever.”

Still Think You Should Sign Right Away?

Why not speak to a severance lawyer?  Granovsky & Sundaresh specializes in severance agreements.  We offer two services in this regard.  First, we can review your agreement with you paragraph-by-paragraph to make sure that, at a minimum, you are an educated consumer.  For some clients, however, we also negotiate severance.

Our Pricing For These Services is 100% Transparent:

  • For review and consultation, we charge a flat fee - $600.  This fee includes a complete review of your agreement, assistance with revising the agreement if necessary, and a bank of time for issues that arise in the future (e.g., if a non-compete issue comes up in the future, we will consult with you on this as well).
  • For negotiation of severance agreements, we charge a contingency fee of 1/3 of the monetary improvement we attain for you.  There is no fee unless we improve your severance.

Yes, You May be Able to Improve Your Severance

We specialize in negotiating severance agreements.  We have improved our clients’ severance agreements in 91% of our cases (as of April 1, 2017).

You owe it to yourself and to your career to understand and improve your situation. 

Contact us today.  Call 646-524-6001. You will be speaking to an specialized severance attorney within 24 hours.

Work Off The Clock Must Be Compensated

If you work off the clock – you have to be paid for it.  It is just that simple.

Examples of work off the clock includes the below (and more).  If you believe that you are performing work off the clock – and not getting paid, contact us today.  Generally speaking, you are entitled to pay for all time during which you are subject to the control of the employer.

  • Pre-shift meetings;
  • Startup activities, like “opening” a store or restaurant, starting up computers or other equipment;
  • Calls, voicemails, e-mails, and texts while you are off the clock (like at home or commuting);
  • Closing activities like locking up, shutting down equipment, etc.;
  • Clocking out for short breaks;
  • Being required to clock out for travel time when the travel is related to your work;
  • Being required to put on special uniforms.

Other issues related to work off the clock include:

  • Failing to pay employees for the entire time they are performing work, not just the time they are “clocked in”;
  • Automatically deducting a meal period from an employee’s hours when no meal period was actually taken;
  • Deducting break time(s) from an employee’s work hours;
  • Not paying for unanticipated time – like when an employee has to return to work;
  • Requesting that employees work on some nights or weekends without clocking in; and
  • Failing to compensate employees who bring work home and continue to work outside of their “regular” workday.

If you believe you or someone you know is not being paid for every hour they work, please do not hesitate to contact us and discuss your potential claim.  We generally work on a contingency fee basis – meaning we only get paid if you get paid.  Contact us today by email or call 646-524-6001

Checklist for Negotiating Severance Agreements

Our firm specializes in negotiating severance agreements for recently terminated employees.  We’ve negotiated severance agreements all over the country from our offices in New York City and Cleveland.  Since we formed our firm, we have improved severance for over 93% of our clients.  You can read our reviews on Google, Avvo, and Yelp.

When we talk to our clients about severance, we generally go through the below checklist.  We don’t always discuss every bullet point with every person, but this should provide a general overview. 

·         Is it Fair?  Here’s the basic transaction:  in exchange for severance (money) the company is getting you to promise not to sue them (and sometimes a bit more).  Are you getting fair value for your promise?  That depends on what your promise is worth – in dollars and cents.  It also depends on common sense.  How much did you give your company in blood, sweat and tears?  Is that being valued (it does not have to be – but it should)?   We work with clients to help them better understand if their offer is fair and help them work towards a more equitable deal whenever possible.

·         Reason for Termination.  This is a big one.  If you believe that the company terminated your employment for an illegal reason (e.g. discrimination, retaliation, etc.), the claims that the company is asking you to release can be quite valuable.

·         Potential Claims.  Like your reason for termination, if your employer violated the law, you have viable claims against the country.  We discuss whether each employee was properly compensated for all time worked, and also explore whether the employee has viable claims under OSHA or Dodd-Frank.

·         Confidentiality.  Map out what is and what is not confidential.  While a company certainly wants to keep its trade secrets (and secrets generally) private, you need to be free to describe your work to potential employers, etc.  Plus there may be certain aspects about your employment that you want to be kept confidential.

·         References.  Severance is about your future, so working out how your references are going to be handled is critical.  A neutral reference usually covers this, but, sometimes, you can iron out a reference letter from your former employer which you can then present to potential employers.  These are fairly rare, but that does not mean you should not look into it in certain circumstances.  Here is an article on neutral references.

·         Personnel File.  You may want an opportunity to review and/or copy your personnel file for your records.  A personnel file would typically contain information about your pay, benefits, and performance.  Even if you cannot get access to your entire file, there may be some information about your employment (salary, benefits, accrued vacation, etc.) that you may want to know.  Think through what information you want.

·         Return/Retention of Company Property.  Most severance agreements require employees to return all company property.  But what if you’ve grown attached to your company-issued laptop or smartphone?  Do you have important personal information on your work e-mail account?  Think through what you might want to keep.

·         Restrictive Covenants.  As noted above, severance is about your future.  Restrictive covenants (non-competes, non-solicits, etc.) can have a major impact on what you are allowed to do after your employment has ended.  If you are subject to a restrictive covenant, your severance agreement may be a good place to revisit the issue.  But you have to be delicate when you address this issue – nothing says “I intend to compete with the company” quite like saying “I want to talk about my non-compete agreement.”

·         Other Pay.  Don’t leave any money on the table.  Make sure all of your earned wages, commissions, vacations, sick leave, etc. have been paid.  Figure out your pension, 401K and benefits.  Make sure that you get everything that you’ve earned.

·         Stock Options.   When are your stock options exerciseable?  Separation from the company may accelerate the time.   Also, if you have acquired stock, majority shareholders may owe you a fiduciary duty to disclose material info about the company stock. You may be able to force the company to repurchase the stock.

·         Future Relations.  Can the company hire you back?  Can you be a consultant, or independent contractor for the company?  Does getting another job (with the company or another company) impact your severance? 

·         Taxes.  Talk to an Accountant.  Figure out how your severance is going to be taxed.    Typically, severance payments are taxed as wages, but not always.  Clever accountants are great at coming up with creative solutions to tax issues related to severance.

If you think you might want to talk to a lawyer about negotiating your severance, please contact us – this is what we do.

What is Disability Discrimination in New York?

What is Disability Discrimination in New York?

What Laws Apply to Disability Discrimination in New York?

If you work in New York, you are protected from disability discrimination at the workplace by both federal and state law – the Americans with Disabilities Act (ADA) and New York State Human Rights Law (NYSHRL).  If you work in New York City, you have an added layer of protection under the New York City Human Rights Law (NYCHRL).

What are Your Rights?

Discrimination on the basis of disability is illegal.  If you have suffered an adverse employment action (e.g., you have been fired, laid off, suspended, subjected to a hostile work environment, demoted, etc.) and you believe that your disability played a role in the decision to take such adverse employment action, you should contact an employment lawyer. 

How is a Disability Defined?


Under the ADA, to qualify as “disabled,” a person must have “a physical or mental impairment that substantially limits one or more major life activities of such individual,” have a “record of such an impairment,” or be “regarded as having such an impairment.”

In 2008, the ADA Amendments Act was passed and added the following guidance to how “disability” should be defined such that:

·        “The definition of disability in this chapter shall be construed in favor of broad coverage … to the maximum extent permitted by [law].

·        “An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.”

·        “An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.”

·        “The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as (I) medication, medical supplies, equipment … prosthetics … hearing aids and cochlear implants … mobility devices, or oxygen therapy equipment and supplies; (II) use of assistive technology;  (III) reasonable accommodations or auxiliary aids or services; or (IV) learned behavioral or adaptive neurological modifications.”

What is a Major Life Activity?

“[M]ajor life activities include … caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”

The term “major life activity” “also includes the operation of a major bodily function, including … functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”

What is it to “Be Regarded as Having an Impairment”?

“[a]n individual meets the requirement of ‘being regarded as having such an impairment’ if the individual … has been subjected to [discrimination] … because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.”


The NYSHRL defines disability as “ (a) a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques or (b) a record of such an impairment or (c) a condition regarded by others as such an impairment, provided, however, that in all provisions of this article dealing with employment, the term shall be limited to disabilities which, upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held.”

Note that this definition is a bit more limited than the ADA because it requires an employee to show that his or her disability can be reasonably accommodated.  On the other hand, the definition is a bit broader in that it does not exclude temporary or transitory conditions.


The NYCHRL offers the broadest definition of disability.  Under the NYCHRL, disability is defined as “any physical, medical, mental or psychological impairment, or a history or record of such impairment.”

Physical, Medical, Mental or Psychological Impairment

“Physical, medical, mental, or psychological impairment” is defined as “an impairment of any system of the body; including … neurological … musculoskeletal … sense organs and respiratory organs… cardiovascular … reproductive … digestive and genito-urinary … hemic and lymphatic … immunological … the skin … endocrine system … or a mental or psychological impairment.”

What Damages Are Available?

Plaintiffs can recover damages for the following: reinstatement, compensatory damages (damages to compensate the employee for lost wages), punitive damages (damages to punish the employer for its act(s) of discrimination), injunctive relief (a court order forcing the employer to do – or not do – something), attorneys’ fees (the amount that a Plaintiffs’ attorney would be paid based on a reasonable hourly rate and the amount of time put in by the attorney) and costs (hard costs for litigation, e.g., filing fees, depositions, court costs, photocopies, mail, etc.).

What Other Laws Are at Play?

Wage Payment Laws – Are you sure you are being paid for all of your time worked?  Even if you are paid a salary or have a “manager” or “supervisor” title, you may still be entitled to overtime or other wages.  The laws at play here are the federal Fair Labor Standards Act (FLSA) and the State New York Labor Law (NYLL)

Workers’ Compensation – If you suffered an injury at work, you may have a workers’ compensation claim.

Medical Leave Laws – Certain employees are entitled to unpaid leave under the federal Family Medical Leave Act (FMLA).  If you suffer an adverse employment action based upon taking or requesting leave (for yourself or a family member), you may have a claim under the FMLA.

What Should You Do?

If you have suffered an adverse employment action, and you believe that it is related to your physical condition and/or disability, you should absolutely call an employment lawyer.  We respond to all inquiries within 24 hours and offer free initial consultations.  Contact us today.

Granovsky & Sundaresh PLLC Can Help

Granovsky & Sundaresh is a boutique labor and employment law firm with offices in New York City and Cleveland that helps employees with all aspects of employment law.  Our practice specializes in discrimination, severance negotiations, employee wages, medical leave and non-compete/non-disclosure agreements.  We offer free consultations and have a proven track record of results.  If you need help, call us to set up a free consultation today.