benefits through COBRA. Retirement benefits that are in place should not be disturbed. Under California law, accrued and unused vacation must be paid out, but sick leave is another matter. By contract, some or all of the accrued sick time may be owed to the departing executive, but if not, it can be requested as part of the severance package. Likewise, other accumulated leave, under whatever name (such as administrative leave), can be requested as part of a severance payout. Those items provided for in an employment agreement that are not necessary for the departing executive, such as a car allowance, are not typically included in a severance package. California has specific laws on non-compete agreements. How do you advise executives on handling noncompetes when transitioning to a new employment opportunity? Recent changes in California law have all but eliminated the enforceability of non-compete provisions and other restrictive covenants. However, Californiabased executives must have their equity and other employment documents carefully analyzed to determine if they are controlled by the laws of other states. If they are, the executive may need to be careful not to run afoul of those laws when moving to new opportunities. What legal considerations should professionals keep in mind when transitioning into new roles, particularly concerning employment agreements and potential conflicts with their previous employers? A provision for severance should be negotiated as part of any offer letter or employment agreement. The executive or ELG counsel should carefully review all documents that the executive will be required to sign as part of new employment. That review should include any equity grants. The executive should be reminded of commitments made to previous employers and then go into new employment with an eye to avoiding potential claims. Where there is concern that the prior employer may come after the executive, the new employer may be asked to guarantee a defense against the former employer’s claims. For executives involved in workplace crises, such as internal investigations or public scandals, how do you support them from a legal standpoint to ensure fair treatment and protect their reputations? ELG attorneys are in immediate contact with the employer’s counsel. Often, the most important effort is to contain the scandal. It is essential that the employer knows that the ELG attorney is watching how an investigation is proceeding. There 34 LAWYER MONTHLY NOVEMBER 2024 Everything is subject to negotiation, with the objective of obtaining a fair severance package that will bridge the executive into new employment or retirement.
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