The Severance Counter Run, Sign-By Date to a Re-Issued Release

This guide covers one job. You have been laid off, you have a separation agreement with a sign-by date, and you want better terms in writing without losing the offer. It runs from the day the agreement arrives to the day the revocation period ends. You come out with a dated calendar, a dollar value for every ask, one counter email in a fixed order, and a line-by-line check of the corrected agreement before you sign.

What deadline actually governs your severance agreement?

If you are 40 or older, federal rules give you at least 21 days to consider an individual release, or 45 days in a group program, counted from the employer's final offer. After you sign, you get 7 more days to revoke. Those minimums, any state floor, and the date printed on the agreement together set your real window.

The federal law is the Older Workers Benefit Protection Act (OWBPA). It sets the conditions a release of age discrimination claims must meet to be valid. Its rules sit at 29 U.S.C. 626(f), and the regulation that applies them is 29 CFR 1625.22. Your age matters because these minimums attach to age waivers. If you are under 40, the agreement's own date and any state floor apply, and counsel can confirm which rules cover you.

Four rules decide how the clock actually runs:

• It starts at the final offer. The regulation runs the 21 or 45 days from the date of the employer's final offer.
• Material changes restart it. Immaterial ones don't. But the parties may agree that no change, material or not, restarts the period. Search the agreement for that clause before you count anything.
• Revocation is fixed. Neither side can shorten the 7-day revocation period, by agreement or any other way. Signing early just starts it sooner.
• Group programs require a disclosure. It must go to each person in the decisional unit who is asked to sign a waiver. The decisional unit is the group of employees the employer considered when choosing who would be let go.

California adds its own layer. Gov. Code 12964.5, as amended by SB 331, requires a statutory carve-out in the agreement and gives you at least 5 business days to consider it. The employer must also tell you that you have the right to consult an attorney. I have not verified other states' limits. Search your state labor agency for "separation agreement" and "release" before you rely on the federal numbers alone.

When this stage is done, your calendar shows three dates: the last day you can sign, your target date for sending the counter, and the day revocation would end if you signed on the last possible day.

Which documents should you request before you counter?

Send one dated email asking for seven records: the decisional-unit disclosure (group programs only), the equity plan, the award agreement, the grant notice, your PTO balance, the bonus plan, and current COBRA rates. Every dollar figure in your counter comes from these, and an outstanding request is the strongest basis for asking for more time.

Here is what each record proves, and when it can mislead you:

• Decisional-unit disclosure. Shows that the group program followed the required process. It misleads when it is missing elements. Read 29 CFR 1625.22(f) side by side with your copy and confirm each required item is there.
• Equity plan. Holds the definitions, including what counts as your termination date. I did not find a standard plan definition, so read yours instead of assuming it matches your last working day.
• Award agreement. Sets your post-termination exercise window and what happens to unvested shares. Filed forms show 90 days in some cases and 12 months in others, always capped by a 10-year expiration.
• Grant notice. States whether the option is an ISO or an NSO, plus the share count and expiration date. In at least one filed form, the grant notice is expressly included in and made part of the award agreement, so read the two together.
• PTO balance. Prices a payout, and in New York it can keep that payout out of the dismissal-pay rule.
• Bonus plan. Shows whether a prorated or full-year bonus has any contractual basis.
• COBRA rates. You need the monthly premium to price a health subsidy ask.

The ISO rule is the one that costs people money. Under IRC 422, an option keeps its ISO status only if you exercise it while you are an employee or within three months after you leave. Three calendar months can be anywhere from 89 to 92 days, so count the actual days from your termination date as the plan defines it.

One practitioner's advice on extensions is worth following: tie the request to the documents still outstanding, and send it well before the deadline gets close.

Subject: Separation agreement dated [final offer date] - document request

Hi [HR contact],

Thank you for the separation agreement dated [final offer date]. So I can review it properly, please send:

1. The decisional-unit disclosure provided with the agreement (if this is a group program)
2. The equity plan, my award agreement(s), and the grant notice(s) for each grant
3. My current accrued PTO balance and how it will be paid
4. The bonus plan document for the current period
5. The monthly COBRA premium for my current coverage tier

Because these records are still outstanding, I'd also like to ask for an extension of the review period to [date]. Please confirm the extension in writing.

Thank you,
[Name]

How do you price each severance ask in dollars?

Before you write the counter, turn every possible ask into a dollar figure from your own records. Use weeks times weekly base, COBRA months times monthly premium, and next-tranche shares times share price, and add the tax cost of any exercise-window extension. No public survey shows how often asks are granted, so your anchor is the published layoff formulas, not anyone's claimed success rate.

The published anchors

These are the formulas companies have confirmed or that were widely reported. A row marked "reported" is not company-confirmed.

The range is 16 to 20 base weeks plus 1 to 2 weeks per year of service, and 6 months of health cover is the most common term. On equity, Meta's package vested RSUs to the next vest date, and Google's accelerated at least 16 weeks of vesting. Block's package added a $5,000 transition stipend. Google paid a 60-day notice period and paid out bonuses and vacation, which shows that notice pay and payouts are separate line items from severance weeks.

Your tenure decides which term to push

Apply both formula shapes to your own years of service. The last column assumes a $100,000 base, which is $1,923.08 a week.

The two formulas meet at exactly 4 years. Below 4 years, a higher base pays more, so push the base weeks. Above 4 years, the per-year rate matters more, so push that. Ask for whichever term moves your own total more, and write the dollar difference next to it.

A counter you cannot price is a wish list. A counter with a dollar value on every line is a negotiation.

Lump sum vs salary continuation: which gets unemployment paid sooner?

It depends on your state, and the only rule established here from a primary source is New York's. There, you may be ineligible if your weekly severance is above the state's maximum weekly benefit rate and the first payment came within 30 days of your last day. In every other state, check the agency's own written guidance before you choose a payment structure.

At that threshold, almost any full-time salary pushes weekly severance above the cap. For most readers, then, the only thing protecting New York benefits is when the first payment lands. The maximum rate changes from time to time, so check the current figure on the NY DOL maximum benefit rate page and read NY DOL guidance IA 318.2 for the rule itself.

So in New York, a PTO payout or a COBRA subsidy does not trigger the bar, while extra cash weeks can. That changes how you build the counter. If two asks are worth the same to you, the one that comes through as leave or health payments costs you nothing in benefit timing.

The OWBPA clock can work for you here. A group release can take up to 45 + 7 = 52 days. If your last day worked is the offer date, the first payment may land after the 30-day line on its own. A paid notice period, like Google's 60 days, moves your last day worked and removes this effect, so redo the math from your actual last day.

Outside New York, the evidence is thin. For California, Texas, Florida, Illinois, and Pennsylvania, I found only secondary sources, and they conflict. For California, one source says severance is not wages under 22 CCR 1265-1, and another says the state agency may treat an "8 weeks of salary" label as wages for that period. To check your own state:

1. Find your state unemployment agency's claimant handbook or employer guide and search it for "severance", "dismissal pay", and "separation pay".
2. Note whether the rule depends on the payment's label, its timing, its weekly equivalent, or all three.
3. Compare the agreement's wording against that rule, especially any phrase like "equivalent to N weeks of salary".
4. Write down which structure (lump sum or continuation) and which payment date your state's rule favors, and put that in the no-cost block of your counter.

Which confidentiality and non-disparagement edits will hold up?

Under the labor board's McLaren Macomb decision, which still controls, narrowly tailored clauses may be permissible. Those include confidentiality limited to trade secrets or settlement amounts, and non-disparagement confined to defamatory statements. Ask to narrow broad clauses to those shapes, and ask for non-disparagement to be made mutual.

McLaren Macomb is 372 NLRB No. 58. The Board reaffirmed it in Prime Communications because it lacked the three-member majority needed to overturn it. The General Counsel has issued a memo, GC 26-04, naming McLaren as a target, and briefs urging reversal have been filed in Valley Radiology (10-CA-324512) and Atlassian (16-CA-324917). A General Counsel memo is not Board law, and the General Counsel cannot change Board law alone. To re-check where things stand, search the NLRB's case records for those two case numbers and look for a Board decision. Whether the Board's standard reaches your role is a question for counsel.

Edits to ask for, in the order I would put them:

• Mutual non-disparagement. Practitioners report that non-disparagement clauses can sometimes be made mutual.
• Non-disparagement limited to defamatory statements. This is the narrowly tailored shape the case law still allows.
• Confidentiality limited to trade secrets and the severance amount. Again, a shape that may still be permissible.
• California carve-out. Gov. Code 12964.5 requires the statutory carve-out. Subsection (e) allows clauses that keep the severance amount confidential, so a confidential amount is a fair trade if the carve-out is intact.

I have not verified other states' limits on these clauses. If you are outside California, ask counsel or check your state's employment statutes.

The severance counter run, step by step

The run takes eight steps over about eight working days. It ends with one written counter sent in a fixed order (no-cost items, then money, then clause edits) and a re-issued agreement you check line by line before signing. Every step has a time box, so the whole run finishes inside the window.

Why this order

No source documents this order. It is my own design, and here is the reasoning. No-cost items go first because they are easy yeses: payment timing, payment wording, separate line items for PTO and COBRA, and written confirmation about the clock. Money goes second, anchored to the published formula table so each figure has an outside reference. Clause edits go last because they are the asks most likely to need legal review on the employer's side, which uses up days you may not have. If the employer accepts only the first block, you have still gained something.

The days you spend waiting in step 6 are good days to job hunt. Refolk writes your resume from your own work history and tailors it to each posting, so applications can go out while the agreement is still with HR.

Subject: Separation agreement dated [final offer date] - requested changes

Hi [HR contact],

Thank you for the agreement. I intend to sign and am asking for the changes below.

Changes with no added cost:
1. Pay the severance as [a single lump sum / salary continuation], with the first payment on [date].
2. Describe the payment as "severance pay" rather than "equivalent to [N] weeks of salary".
3. List the PTO payout and any COBRA payment as separate line items.
4. Please confirm in writing whether these changes restart the [21/45]-day review period.

Changes to amounts:
5. Severance of [Y] weeks instead of [X] weeks, an increase of $[amount], in line with published formulas of [16] base weeks plus [2] weeks per year of service.
6. Payment of COBRA premiums for [N] months, $[amount] in total.
7. Vesting of the [date] tranche of [N] shares, valued at about $[amount].

Changes to clauses:
8. Make the non-disparagement clause mutual and limit it to defamatory statements.
9. Limit the confidentiality clause to trade secrets and the severance amount.

Please send a revised agreement by [date], which leaves [N] days before [last sign date].

Thank you,
[Name]

Who can review a severance agreement or explain your equity?

Most lawyers whose profile title is employment attorney don't signal severance work. In Refolk's index of professional profiles, only 2 of the 255 US profiles with that title mention severance in their headline. Expect a title search to turn up mostly general or management-side lawyers, and screen for employee-side work before you book a call.

These are headline-title matches, not a count of the whole market. In the attorney sample, the top employers include USPS (3) and Constangy (2), which are not the employee-side practices you want for this job. When you screen a lawyer, look for wording like "represent employees" or "separation agreements" in the full profile or firm page, not just the title.

Equity specialists are easier to find but play a different role. Refolk's index has 203 US profiles titled Stock Plan Administrator, Equity Administrator, or Equity Compensation. In a 25-profile sample, 21 carried the Stock Plan Administrator title, and the top employers were UBS (3) and Apple (2). Administrators can explain how a plan works mechanically. They do not advise you on whether to exercise or what an ISO-to-NSO conversion will cost you in tax.

How does a severance counter go wrong?

Most failed counters come from one of seven errors: misreading the restart rule, using a stale unemployment threshold, misquoting a published formula, missing a salary-style label, accepting a longer exercise window without pricing its tax cost, treating a General Counsel memo as law, or treating index counts as market size. Each one has a quick check.

1. Misreading the restart rule. One practitioner blog says changes do not restart the clock unless the parties agree. The regulation says the opposite: material changes do restart it, unless the parties agree they don't. What it looks like: you count from the wrong date and sign late, or rush a signature you didn't need to. Check: quote 1625.22(e)(4) and search the agreement for a no-restart clause.
2. Using a stale unemployment threshold. Several pages still cite New York's old $504 maximum. What it looks like: you conclude your severance is under the cap when it isn't. Check: dol.ny.gov/mbr, every time.
3. Misquoting a published formula ("every year" vs "every additional year"). One outlet described Google's formula as 2 weeks for every additional year, and another left out "additional". That wording changes the total by 2 weeks. What it looks like: your anchor is 2 weeks too high, and the employer corrects it, which weakens the rest of your counter. Check the exact memo wording before you cite it, or cite the range instead of one company.
4. Missing a salary-style label. Wording like "equivalent to 8 weeks of salary" may be read as salary continuation for unemployment purposes even when the money arrives as a lump sum. What it looks like: a delayed or denied claim. Check the agreement's wording against your state agency's rules, and ask in the no-cost block to change it.
5. Accepting a longer exercise window without pricing its tax cost. Exercising more than three months after you leave turns an ISO into an NSO. What it looks like: you win a 12-month window and then get a tax bill you didn't plan for. Check the option type on the grant notice and price the conversion before you count the window as a gain.
6. Treating a General Counsel memo as law. A memo is not Board law. McLaren controls until the Board overrules it. What it looks like: you drop a fair clause edit because you read that the standard "is changing". Check for a Board decision in the pending cases.
7. Treating index counts as market size. The 255 attorneys are headline matches only. What it looks like: you conclude that employee-side severance counsel barely exists, when most of them simply don't put the word in their title. Check firm pages and full profiles.

Checking the re-issued agreement and what comes next

Before you sign, compare every agreed term in the re-issued agreement against your counter email and the employer's written replies, and confirm in writing whether the clock restarted. Sign only when the text matches. Then let revocation run, file for unemployment on your state's timing, and move into the search full-time.

Read the re-issued agreement as a new document, not a markup of the old one. Set aside 1 to 2 hours, put your counter email on one side and the new agreement on the other, and check each numbered ask against the clause that is supposed to carry it. Amounts, dates, and wording all have to match. "Mutual" has to appear in the non-disparagement clause, not just in an email that says it will.

Once you sign, the 7-day revocation period runs and the agreement takes effect on day 8. File your unemployment claim on the timing your state's rule supports, and keep the agreement, your counter email, and the written replies in one folder in case the agency asks how the payment was structured.

Then turn to the search. Your severance weeks are your runway, and they go faster when every application is tailored. Refolk drafts the resume from your history, tailors it and the cover letter to each posting, and scores how well you fit, so you can spend the runway on roles you can actually win.

To keep this guide current for yourself, re-check three things whenever you use it: the New York maximum benefit rate at dol.ny.gov/mbr, any Board decision in Valley Radiology or Atlassian, and your own state agency's severance guidance.