Provided by: Jennifer Kirschenbaum, Esq.
October 27, 2022
My office manager is finally moving on. I've been dreading and desiring this for a long time. I do not want to approach her for any type of legal release, but would happily give her some severance. Is that a mistake? Can I legally give severance without paperwork?
Thank you for your insight.
The preferred outcome is to obtain a release of any and all potential claims relating to employment or otherwise in exchange for some consideration (which may include severance). In order for a release to be valid you would need a bargained-for exchange (contracts 101). But, you do not need to get a release in order to pay severance. Certainly you are legally allowed to pay severance to any employee without first getting a release.
There are many factors that come into play, including emotions, during a separation. And, a properly drafted release is going to be bereft with legalese, waiting periods and revocation periods, which may also trigger an employee feeling compelled to involve an attorney on their end. The stakes in that case are elevated and the employee may start drudging things up you do not care to engage on in order to increase a potential severance number. Definitely happens.
Many employers resolve separation through a severance grant with no release. Of course on this issue, as well as so many others, it is only hindsight that will prove 20/20. If the employee doesn't, in fact, leave "quietly", you will most certainly wish you obtained a valid release. "Valid release" is another topic for another day, but note you should not be pulling samples off the internet - you may very well end up with an invalid release that was not executed with proper procedure or is not enforceable by its language. If you are going to bother with a release in the first place, at a minimum, make sure the document is valid and enforceable!
Call with questions or to discuss any concerns. Yes, you need a witness for all conversations with an employee.