Why Did the Lawyer Put This in My Severance Agreement?: The Cooperation Clause

Why Did the Lawyer Put This in My Severance Agreement?: The Cooperation Clause

This continues my series of posts deconstructing the legal gobbeldy-goop in employment agreements. Today I'll talk about a clause I often see in severance agreements: the cooperation clause. It may look something like this:

Employee agrees to cooperate with Employer in connection with any legal matters, if so requested by the Company, including agreeing to make himself available at the Employer's request to assist with matters requiring the provision of information and/or testimony.

Yikes! My clients never like this and neither do I. And really, what good do most employers think is going to come from having an employee they axed testify on their behalf? My first response is usually to ask that this be taken out of the agreement. However, management-side attorneys love these clauses, so here's what I usually do that will work.

First, I ask for language something like this:

Such cooperation shall be arranged so as not to interfere with Employee's employment and/or business.

That way I don't have to worry about the jerk employer who says the employee has to come in during the key sales meeting, the peak busy time, or their first day at a new job. If the employer wants cooperation, they can arrange it after hours or on a weekend so the employee doesn't get fired from their new job. If they want a deposition, same thing. Depositions can be scheduled to work around times that will get the employee fired from their new job. Without this language, the employer can say, "Tough tookies," when the employee cries foul.

The other language I ask for is that the employee be paid for their time. While they probably can't be paid for their time testifying, I want to make sure my client doesn't become an indentured servant forced to help their former employer respond to complicated discovery requests or submit to endless deposition preparation sessions. Even if it's a deposition, the employee should be compensated for their expenses, such as parking fees, gas mileage, and other out of pocket expenses incurred in this cooperation.

Forcing an ex-employee to work for free probably violates the Fair Labor Standards Act in any event, so even if payment isn't in this clause, an employer who goes too far with their demands might run afoul of the Department of Labor.

See more employment law posts on Donna Ballman's blog, Screw You Guys, I'm Going Home

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