Once offered a layoff severance package can the company rescind the layoff if they decide they want you to stay? Can you legally say you would rather take the layoff offer instead?

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Once offered a layoff severance package can the company rescind the layoff if they decide they want you to stay? Can you legally say you would rather take the layoff offer instead?

The company provided notice of mass layoff with a 90 day notice and details of
the severance package. Several employees were selected to stay on as part of a
skeleton crew, however they do not want to remain and are looking for new jobs. I
am fearful that the one remaining employee in my department will leave for a new
job and the company will ask me to stay in their place and I will loose my
severance package. Is the company legally allowed to do that? Is there anything I
can do to prevent this from happening? Am I allowed to not accept their offer to
stay on and instead take the original severance offer?

Asked on January 26, 2017 under Employment Labor Law, New York

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

The law does not govern severance packages--whether you have to be offered one, what their terms are, etc. Rather, it is voluntary for a company to offer severance and so the company can decide whether to offer it and to whom. So your company could elect to not offer you severance if it decided that it needed you to stay.
The exception would be IF there is a written severance agreement and you have already signed it and accepted it in writing. In that case, they would be contractually obligated (the written severance agreement is a contract) to give you severance, and if they did not, you could sue them in court to enforce the agreement. But without a written agreement, already signed/accepted by you, it is their choice.


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