Hi Reader,

A few weeks ago, we hosted a live Q&A for people who'd just been laid off from a handful of large tech companies. Alex Daniels, a corporate attorney who spent years at Cooley, one of Silicon Valley's top law firms, joined us to field questions. Nearly 100 people showed up and we ran out of time.

So we recorded an emergency episode of our Gentle Power Podcast. Alex Daniels joined us again as did our friend Grace Ling (a creator and UX designer who we had just interviewed for her own Gentle Power episode), who stayed to co-host and ask a few questions of her own.

The topics below came directly from recently laid-off employees trying to figure out what leverage they actually have as part of their severance, whether they need a lawyer, what to do first, and more.

Listen to the full episode here (YouTube | Spotify | Apple), and read on for a written account of what we covered.

By the way: if you're based in California and want to talk to an employment lawyer, reply to this email and we're happy to put you in touch with one from our personal network.

Quick note: this is a sponsored newsletter. If you check them out below, it means a lot to us and helps keep our newsletter going.

1. Protected class status is the foundation of your leverage

Most employees in the US are at-will employees, meaning a company can let you go at any time, for almost any reason.

The key word is "almost". Companies can't fire you for an illegal reason, and if you're in a protected class, that changes what leverage you have.

Protected classes include pregnancy, parental leave, disability, and medical history, though the exact list varies by state. California's list is long and keeps growing (and many states follow California's lead on employment law). Alex Daniels mentioned that in some cases, even hair style is a protected class, tied to religious or cultural reasons.

The principle is that if a company fires you on the basis of your protected class status, that can be considered unlawful termination and you just might have a claim.

2. You don't need "smoking gun" evidence

A lot of people assume they need hard evidence before they have anything to work with, such as an internal memo, a direct quote, or anything definitive.

Alex Daniels described two types of discrimination. Most people imagine what's called "express discrimination" is the only thing that meets the bar: someone at the top made an explicit call to target a specific group.

But there's also "tacit discrimination". It's unspoken, subtle or invisible in any single instance, but identifiable in a pattern.

If a disproportionate number of people laid off from your company were on parental leave at the same time or returning from medical leave, that pattern itself has weight. As Alex Daniels put it, juries don't need the smoking gun. They look at the full picture, and the full picture often favors the individual over the corporation.

3. Everyone technically has a case

Alex Daniels joked, this is America, and you can sue for almost anything.

The real question is whether you can get your case pushed through the legal process to a settlement or court. If you can establish your protected class status, show that the company knew about it, and demonstrate a plausible connection between that status and your termination, that's usually enough to start the process. You don't need to guarantee a win. You need enough of a foundation that the other side has to take you seriously.

Once that's true, the company now has to weigh the cost and unpredictability of litigation against the option of just resolving it. That calculation almost always favors resolution.

On that note, litigation is expensive and slow for everyone involved.

That's why companies push separation agreements and want you to sign quickly. They want a release confirming you won't sue them, so they can stop thinking about you. The severance on the table is, in part, the price of that certainty.

Alex Daniels thinks about the math this way: even if a company believes it has a strong defense, going through litigation can take months or years, and jury awards for discriminatory practices can be significant. Most companies look at that calculus and prefer to resolve things before they get there.

4. The threshold question: is your situation worth pursuing?

Alex Daniels said that it depends, and the only way to know for sure is to talk to an employment litigator.

That said, he offered a useful starting frame. First, are you in a protected class in your state? That's the foundation. Second, does your situation have the markers that make a claim viable? Were you on leave when you were let go? Did the company know? Were there patterns in who got cut that point toward your class being a factor?

If the answers lean toward yes, a consultation with an employment attorney is worth the time. They'll give you a clear read on what you're actually working with.

One caveat though is that even if you have a solid claim, the damages you're awarded might not outweigh the time and energy of pursuing it.

Bumping what we shared in a previous newsletter: a rough rule of thumb to think about whether legal action makes financial sense. Employment litigators work on contingency, taking 30% to 40% of whatever they recover for you. That means if your current severance is worth $50K, you'd need to walk away with more than $100K for the math to work after fees, plus whatever you'd assign to the time and stress of a formal dispute. Alex Daniels' rough rule: 2X your current severance package is the floor worth clearing before it may make sense to engage an employment litigator.
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5. State law matters more than federal law

In most employment situations, your state law is what actually governs the protections available to you.

Alex Daniels illustrated how much state laws can differ by comparing California and Texas. California bans non-competes in almost every situation. Texas allows them broadly enough that he joked you could put a non-compete on a fast food worker. California has a long and expanding list of protected classes, while other states are slower to follow.

The takeaway is to know your state laws before you sign anything, because what you can negotiate depends largely on the protections available in the state that you work.

6. If you're a remote worker, your W-2 is your guide

This question came from the remote workers on our Q&A: if you live in one state, say New Jersey, but your company is headquartered in another state, say New York, which state's laws cover you?

Alex Daniels's rule of thumb: it's wherever you're actually performing the work. Your W-2 state withholding is the practical indicator. The state collecting taxes from your labor is most likely the one with jurisdiction over you.

For most people this is simple because they live and work in the same place. For remote workers with offices across state lines, take two minutes and check the state withholding on your W-2s or pay stubs before you sign anything.

This episode was recorded because we ran out of time in the original Q&A. If you're in the middle of a layoff situation right now, or you know someone who is, the full conversation is worth listening to: YouTube | Spotify | Apple​

To connect with Alex Daniels, add him on LinkedIn or visit his website, DecryptedLaw.com.

And important legal disclaimer: Alex Daniels is a lawyer, but he's not your lawyer. Everything above is general guidance, and employment law has a lot of edge cases that depend on your specific situation and location. We're also neither advocating for nor recommending that you take legal action against your employer.

Speak directly with an employment attorney in your state if you'd like to explore your options. If you need any recommendations for CA-based employment lawyers, reply back to this email and we're happy to connect you with some we know in our network.

Warmly,

Gerta & Alex​
​Founders, YourNegotiations.com

P.S. Navigating a layoff and unsure what your options are? Book a free call.

P.P.S. Know someone interested in negotiations?

Send them our way and we’ll thank you with $250 for each person who becomes a client. No cap.

A quick intro or an email to alex@yournegotiations.com works.