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What to Know Before You Get Fired or Laid Off

Here's how to receive the most money when you leave and the best references for your next job

By Donna Ballman | November 1, 2012
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Donna Ballman is an employment lawyer in Ft. Lauderdale, Fla. and the author of Stand Up For Yourself Without Getting Fired. She has written for AOL Jobs and Monster.com. Follow her on Twitter @EmployeeAtty.

So you hate your job and are ready to quit. Or you think you’re about to lose your position because you’ll be fired or laid off. This is the time to develop a strategy to deal with your workplace departure before things blow up. That means knowing your rights as an employee and your responsibilities to your employer.

As the author of the newly released book, Stand Up for Yourself Without Getting Fired, here’s my advice:

What to do if you think you’re going to be fired: Signs may include your boss not looking you in the eye; you’re directed to write down everything you do and how you do it; a new person started a week ago and you’ve been asked to train him or her. Translation: You’re on your way out.

Unless you have a contract saying you can only be fired for cause, under federal law, the employer doesn’t have to give any reason for letting you go.

While this is a stressful time, it’s also an opportunity to prepare.

If you think you’re being singled out due to race, age, sex or national origin, start writing down the ways you believe you’ve been treated differently. A discrimination claim might give you leverage to negotiate a better severance package.

No matter why you may lose your job, polish your resume; copy any thank you notes, letters or great reviews you’ve received from your boss; take any plaques, certificates and awards home (in case you’ll be asked to leave abruptly) and get a copy of your personnel file if you can, as well as the employee handbook and benefits policies.

Be discreet, though. Don’t empty out your office in one day. If you do, your employer may say you quit.

Giving notice: There’s no law requiring that you give your employer advance notice before you leave. Giving two weeks’ notice is, however, the normal courtesy. I’ve heard many cases of employees giving notice, then the employer turning around and saying, “leave now.” So be prepared for this possibility, especially if you work for a jerk. Don’t be caught flat-footed by counting on two more weeks of pay. Have a plan for what you’ll do if your boss won’t let you stay.

Many people try to use their leftover vacation time as part of their notice period. But most employers won’t let you do this. If you really need to take that prepaid vacation, take the time off you’ve earned, then come back and give notice. Otherwise, you might be taking an unpaid vacation.
 
(MORE: 7 Rules for Quitting Your Job Gracefully)
 
Signing termination papers and severance agreements: If your employer hands you a resignation or termination paper to sign and you’re not getting any severance, take a pass.

Keep in mind that potential claims, like age discrimination, may give you leverage to negotiate a severance package if it is not offered, or to negotiate a better package. 

If you will receive severance, be careful before signing an agreement. You may wind up agreeing to something costing you more than the amount of your severance, such as a requirement to turn down a job offer from a competitor. If the employer wants you to sign a non-compete clause and the restriction is longer than the number of weeks of severance, it’s probably not worth signing unless you’re going into an entirely new field.

If you don’t understand everything in your severance agreement, you should have a lawyer review it. Many employment attorneys will work to negotiate a better package for you, although having one could lead your ex-employer to dig in its heels about the company's severance offer.

To find an employment lawyer, ask friends and former colleagues who’ve received severance agreements and consult the online directory of the National Employment Lawyers Association.

Exit interviews: Some companies say you’ll need to give an exit interview after you’ve been fired. That’s because firms use exit interviews to cover themselves in case departing employees later claim discrimination or something illegal.

Here’s the truth about an exit interview: Your employer can’t make you go to one.

(MORE: A Must-See Film on Being Over 50 and Out Of Work)

I’d suggest not giving an exit interview unless the firm offers to pay you the equivalent of your salary for the time it takes to do one. The trouble with exit interviews is that anything you say can come back to bite you later. I’ve seen people who were accused of making threats or engaging in inappropriate behavior during their exit interviews.

If you do have the session, avoid the temptation to blast your supervisors or complain about their incompetence or mismanagement. Remember: These are the people who will be giving references to potential employers. So no matter what you think of them, hold your tongue. It could serve you well in the future.