[davidm888]

There are a number of comments saying things like, "get them to accept the check on the spot," "entice them to sign the severance agreement quickly," "make sure they sign it fast before they change their minds and get a lawyer," etc. This is bad advice.

It is true that you should get them to sign an agreement that contains, among other things, a "general release" that basically says that they promise not to sue you for any reason. It is also true that to be enforceable, you must give something of value (i.e., "legal consideration"), and the severance pay is usually the principal consideration for such an agreement.

I would be extremely cautious, however, about getting someone to sign quickly. It seems to make sense on the face of it (get them to sign away their right to sue before they contemplate getting an attorney). But there is a flip side that no one is mentioning. If you shock someone by calling them into your office and telling that they're losing their job, put a legal document in front of them that they probably won't completely understand (it's going to have a laundry-list of statutory provisions that they need to expressly waive), put a check in front of them and say "here, sign this now!" you're going to unnecessarily jeopardize the enforceability of the release. The ex-employee's lawyer will argue that it was signed under duress and without sufficient knowledge, understanding and consent to constitute a valid waiver of the right to pursue certain claims.

Also, depending on the worker's age, there might be additional complications. The Older Worker's Benefit Protection Act applies to employees over 40, and requires the terminated employee be given 21 days to consider the release and 7 days afterward to change their mind. (The 21 days increases to 45 if there are two or more employees being terminated.) Although this particular statutory requirement doesn't apply to those under 40, it underscores the notion that allowing someone to consider a severance agreement for some amount of time and have the opportunity to discuss it with their own attorney if desired are both good things when it comes to enforcing the agreement. How long you give them is a matter of balancing numerous statutory and common law considerations (both state and federal) with the goal of getting them to sign quickly, and there are avenues, regardless of age, for their attorney to attack the validity of the release if they sign it without properly understanding and consenting to its terms.

I should also point out that severance agreements should always be prepared by an attorney. There are numerous considerations that vary state-to-state; there are specific waivers that need to be contained in them; there are different rules depending on the number of employees; possible notice requirements (in which case the severance might be designated as compensation in lieu thereof); rules about timing of final payments; whether or not benefits are paid out; etc.