Best Practices for Terminating an Employee Webinar
JENNIFER: My name is Jennifer Kelly, I’m the Manager of Marketing and Business Development at Burns White and I want to thank you for joining us today. For those of you that are not familiar with our firm, Burns White is a litigation defense firm that provides employment, regulatory, and corporate counsel services to clients from a broad spectrum of industries. Our attorneys offer our clients big law performance with a more personal touch, taking a hands-on approach to building long-term relationships and aligning legal strategies with our client’s business objectives. We operate 7 offices throughout the Mid-Atlantic region and serve as National and Regional counsel in a variety of practice areas. A few housekeeping items before we begin, all attendees have been automatically muted so that there is no interference during the presentation. We encourage you to ask questions using the chat feature, it is the icon of a blue silhouette located at the bottom of the screen. We will make every effort to answer all questions submitted at the conclusion of the program, in the event we do not have time to address all questions, we will respond to any unaddressed questions via email. After the program you will receive a brief survey, please take a moment to answer the questions as your responses will help us to shape future programming and the overall webinar experience for participants. Our speaker today is Jeff Adler, Mr.Adler has been providing legal representation to individuals, businesses and organizations for more than 30 years. As chair of the firm’s Employment Practices Liability Group, Mr. Adler counsels individuals and corporations in all aspects of the employer-employee relationship, including contract negotiation, drafting and negotiating employment agreements, drafting and reviewing employee procedures and policies and risk management. He also has significant litigation experience and defends clients in shareholder dispute, restrictive covenant and employment discrimination action. I’ll now turn it over to Jeff.
JEFF: Thank you very much, welcome to everyone, thank you for joining us today. I hope to give you some practical advice regarding terminating an employee from your company. Having handled many many lawsuits involving terminations from our standpoint on behalf of employers, we usually see the same thing. Both the employer and the employee believe in the righteousness of their position, the employer always says, you know we bent over backwards for this person, we gave this person every benefit of the doubt and the employee always says, I killed myself for this company, I did everything they asked, I did far better than Bob in accounting and Bob got a raise and I didn’t. And that’s usually the attitude most people bring into a situation where an employee is getting terminated. One of your goals, I believe when you’re going through best practices for terminating an employee is, try to make sure the termination is the end of the relationship and that you’re not getting a lawsuit or a claim or complaints from other people in your organization after that individual has been terminated. So we’re going to try to talk through some points and some ideas that you can use, that I hope are practical when you’re involved in terminating an employee. Let me start by saying that it’s very important to work hand in hand with your HR department. I’m going to give you an example that came up just this past weekend, it was brought to my attention, one of my clients called me about. It was a situation where someone resigned from an organization, so it wasn’t a termination per say but this individual had resigned from the organization, this person had a restrictive covenant, went into the boss and said, you know I’m leaving, I want to resign. The boss immediately exploded and marched him out of the office in front of everybody, made a big scene, etc. and of course within an hour HR was frantically calling because the HR department, and I’m talking about at a major company, but it would apply to any size company, the HR department had not been involved and there were any number of things that did not get handled the right way. If you fail to involve your HR department and there is some immediate termination or something like that, you’ve got to make sure that you at least have some guidelines in place so that the supervisor, the manager, the boss who’s making that decision has some understanding, hey I better get HR involved. Even if it’s going to be that fast so as you can imagine there were any number of things that were done the wrong way because the supervising manager, whatever, was not, hadn’t really thought through a number of issues that they need to think through. Typically what we see is employers who call us because they’re thinking about firing someone and when that happens we always have the same conversation with them which is, is this employee going to be surprised?Is there, what are your reasons, etc. and the employer always says, it was a long time coming, he won’t be surprised, she will be relieved, here’s a bunch of bad deeds that they did that we didn’t document, but we did document the violation of the cell phone policy. Don’t ever call and say you’re firing anybody or terminating someone because of the violation of a cell phone policy and I’ll get into that a little bit later.
So, we’re going to try to give you the top 10 to do or not to do things when terminating an employee.
Always, in all employment matters, termination or anything else, remember the two C’s: you must be consistent in your practices throughout your company and you must keep the information confidential. Now, consistency, here’s our typical consistency situation: Jane gets fired for three unexcused absences, Bob in accounting has five unexcused absences and he hasn’t been fired, you have an inconsistent situation on your hands that you’re going to need to explain and if you’re in a lawsuit, because Jane says I didn’t deserve to be terminated, she’s going to be pointing to Bob who had those five unexcused absences and is still working there. Just a word or so about confidentiality, I know it’s obvious but confidentiality is essential. Whatever your decision process is, should be limited to the people who have a need to know basis. So number one, that would be your HR professional and the immediate supervisor of the individual being terminated. This is not the type of thing that needs to be shared with every owner of the organization or with managers in other departments and as we’ll talk about later on, you will have to make plans on how you’re going to communicate that termination but up to and through the point of the termination be as confidential as you possibly can. Another thing about confidentiality and certainly something we see in the me too era if you will, is that people want to know why someone got fired. The people who are remaining behind are often asking questions. You can’t talk about it. You have to tell them that it’s a confidential situation. You have to find a way to communicate that you took action, so here’s an example: Jane in accounting complains that Bob is constantly coming by and offering to rub her shoulders, she complains to someone, it gets dealt with, Bob is reprimanded, he’s brought in, he has a write up that’s put in his file and he’s advised, look you can’t do this kind of stuff and he also is either given a couple weeks without pay, whatever the appropriate punishment is that the company decides. He’s been warned, etc. Now Jane wants to know what happened, well what was the punishment? In that situation, Jane should not be filled in on whatever actions were taken. The only thing that Jane should be told is, we appreciate that you brought this to our attention, we have addressed it immediately and Jane, as I’m sure you can understand that we respect every employee’s privacy and this is not something that we can discuss and would not discuss. I can tell you that we have handled many many lawsuits where the terminated employee comes in and says, I never knew what happened, I’m so upset they didn’t come back to me, they didn’t report to me. You shouldn’t. Confidentiality is like a secret, once you tell it to one person, it’s no longer a secret. And in this case you also have an obligation to protect the confidentiality of the complaining individual and confidentiality of the individual who was getting reprimanded, even if the person was terminated, you still would not want to talk about the details of the termination. He was fired because of your complaint, Jane. You don’t want to go there, you just want to say Bob’s not here anymore. Next point, you’re going to have situations where you have an immediate termination and those are easy, somebody’s caught stealing from the cash register, hopefully you have it on videotape and as opposed to one witness, hopefully your cash register is under a camera, but in any event, someone curses out the boss, those are grounds for immediate termination and you’re not going to flinch on that, I’m sure you have policies to that, in that regard, so go ahead, hey you’re fired. We don’t accept this behavior, you’re gone. The other situations are grey and more difficult but these are the ones that you have to plan for. These are policy violations, performance issues, things like that. So the first thing you do as part of your planning process is you want to create your own internal memo with reasons that explain the actions you’re taking, why you’re taking them, why you’re taking them at that point and time, and again the reason should be good. Don’t fire someone because they violated the cell phone policy. What do I mean by that? Is and I cannot believe how many times because this has happened more than twice, someone has come in and said, well we’re getting rid of them because they violate the cell phone policy, from someone who works in an office where everybody has a cell phone, is on their phone all day long but they decided, the company decided, you know we’re really tired of this guy or we really have an issue with this guy, so we’re going to get rid of him and the only thing we can find is the cell phone policy so we’re gonna use that. That’s not a good idea, that will quickly get you into court.
So part of your planning process, well the first thing you want to think through is what will your customers say? Where’s Bob? I loved Bob in accounting. You have to anticipate the response of your customers and do you need to take steps to protect yourself. Do you need to make sure there’s someone available to step into that position immediately? Do you need to make sure that certain clients or customers are going to get a personal visit and say you know, Bob’s no longer with us, we want to introduce Jane she’s taking over his position and we have every confidence in her, etc. etc.? You need to think through, what is the business spin. The next thing is, you can’t really say anything to your customer other than so and so’s no longer here. Now when people depart and you have a policy for references, your policy should be to give a neutral reference and if someone calls asking for a reference that you’re going to say Bob worked here from January one of this year through August fifteen of this, whatever the other year is, here’s his work dates, he worked in the position of x and that’s it and you don’t really want to be telling people what happened to Bob or where did he go. You can’t say anything and I think you have to have a professional response to give to those customers which is, Bob has moved on to another organization, Bob doesn’t work here anymore etc. and I really can’t talk about it and try to do that without giving inflection or face making that suggests to that customer, well here’s the real reason, because eventually if that gets back to Bob you’re going to have a problem with that. Another thing you have to do is anticipate the response of your other employees, will your employees who are working in that department, they’re going to want to know what happened, where did he go? I think you will, again, as an employer you want to be prepared for, this is what we’re telling the employees and you have to make sure you are protecting the confidentiality of all individuals resolved, involved. And then, again, think through do you need a transition to someone else to occur, so we’re now, step one, we’ve gone through the planning, we know that we’re going to get rid of someone because they’re not working up to par and this is generally not a policy situation but we’ve tried to anticipate every response we’re going to get from all the various constituencies, customers, other employees etc. and of course, the terminated employee himself.
Next, review your documents. Is your personnel file documented? As I’ve said before if you’re firing someone for performance issues have they been evaluated on an annual basis? Does the evaluation say that they had issues that needed to be resolved or does the evaluation give exceeds expectations every time? As an employer you cannot be an easy grader, you have to be a realistic grader and you have to make sure that everybody is evaluated the same way. If your personnel files documented with weak evaluations and you’re terminating someone for performance issues, the personnel file backs that up, you’re fine. I will tell you in a lawsuit setting we always ask clients, employers two questions. Question number one is, do you have a personnel file on this person? And we always get a big smile that says absolutely and then the next question is, can you slide it under the door? And if the answer to that is, yes we can then we stop smiling because that tells us that the personnel file has not been documented. Next thing is, what does your handbook say? Do you have a progressive discipline policy that requires warnings, that requires you to go through various steps before you can terminate someone? You need to know that, you need to look at those documents. The next thing, does the employee have a contract or some type of restrictive covenant? Now if the employee has a contract through a certain point and time, you’re probably going to have to pay that person through the end of the contract unless there’s a for cause termination section in that contract, and now you’re doing the analysis to see whether or not you can justify a for cause termination.
As part of reviewing your documents, review your policies. Do you have a severance policy? What is it? Now, one could be a severance policy that’s in the handbook that says upon severance, upon termination you’re going to get two weeks of severance pay. Other things could occur where it’s not in the handbook but you have a practice and procedure as a company of giving two weeks to everybody that walks out the door for whatever reason and we’ll touch on this later but if that is your practice, to give severance and you’re seeking to get a release from the terminated employee then that severance may not be enough consideration for that release because they would be getting the severance anyway, same thing if they have stored up vacation policy which we would always advise you to pay, if you’re paying the vacation policy the vacation policy exchange for release, I’m sorry the vacation pay in exchange for release may not be a sufficient consideration. So you need to have a good thought process in terms of, what do we want to get here and what is the severance that we usually give? What’s your policy on references? Again, as I mentioned before we would recommend to most people that they have a policy of only giving dates of employment and position held which is called a neutral reference but whatever you’re doing, be consistent. Don’t give Jane a recommendation but deny one to Bob in accounting because that’s as if you’re making a statement on his ability so it’s very important to have a consistent policy and the easiest one is to, as mentioned just give neutral references.
Alright, we still haven’t gotten the employee in the room and told him or her that it’s time to go so we’re still in the planning process, so we’ve come up with a plan, we’ve anticipated the business implications of the termination, we’ve reviewed our documents and now we’re going to take a deep breath and do the tough thing of bringing somebody in and telling them that they’re terminated. Pick the time, pick the location, pick the participants, you want to do this in such a way that will minimize interaction with other employees. So, for example, if you’re having, in your office if you have conference rooms that are near the exit door, schedule that conference room. If you have a conference room that is in the middle of the floor where everyone is working around that person and you’re going to walk out of a room and be looking at 20 to 30 other employees who are working in their work stations, probably not the best conference room to select. Try to find the time. Try to do it late in the afternoon. Try to reduce the chatter and the buzz. Be prepared to change the locks, if the person has a key fob you’ll be getting their key fob back, if there’s a code on your doors you’re going immediately go around and change the code on the door. Have witnesses, you can’t bring somebody in and terminate them in a one on one setting. Whether you’re going to have your witnesses, your HR personnel from a remote location, that would be better than just doing it yourself and having other people on the phone so they can hear what transpired but if possible have somebody else in the room, and typically it would be an HR representative and that individual’s supervisor. Even little things like having water in the room or a box of tissues in the room are important to think about if you think that’s going to be important. I think the other thing you want to think about is where will be sitting around the conference table in that room, so you really want to make sure that you are sitting between the person who’s about to be terminated and the door because you don’t want that person to leave until you’ve said everything that needs to be said, and it’s a subtle comment and, but it’s important, you don’t want to have a situation, and I’ve seen this situation, where brought someone in to be terminated and the, sat the individual down and said this can’t go on, we’re going to have to let you go and the individual jumped up and said you can’t do that, stormed out and showed up for work Monday morning as if nothing had happened. In my defense, the door was kind of sideways to the table so we had no option except to seat the way we did, but you need to think about that, you need to think about I need to communicate certain things to this individual, and how am I going to make sure that I’m going to do it. Okay so now you’ve decided your time, your location and you’re ready to call the person in, make sure and even unrelated to the termination itself, as a general principle in your organization, I suspect that most of you have a checklist of things that occur when a person leaves the organization and if you don’t, you need to have that.
First of all, the easy one is you will shut off their computer and their phone immediately. You don’t want people to have access to the computer, we’ve seen situations where people were terminated and said, Can I go back into my office and get my stuff? And the first thing they’re doing is getting on their computer and deleting things because they know that there’s something on the computer that you shouldn’t see or they're just going to be vindictive and get in the way of how you do your business. You should have someone in your IT department prepare to shut off their computer and phone while you’re having the meeting. Next thing, what do you have to get from them with regard to electronic devices? Is the employee using a company computer? Is the employee using a company IPad? Is the employee using a company phone? Does the employee have key fobs, swipe cards, etc? Keys to the certain cabinets or desks, etc. you want to get that information. Next, get passwords. If you have an employee who’s working in a particular area with either a company from whom you connect for your software or whatever, company from whom you make purchases, you need those passwords and if you can’t get those passwords you’re going to have an issue. So try to get those passwords now rather than having to reconstruct it and create new passwords later. Get their hardware as I mentioned, the laptop, the IPhone and all of that. You want to make sure that they get their stuff, so you want to go back to that person’s desk or back to that person’s office and kind of do an inventory of what’s in there, perhaps even get out your phone and take a video or pictures of what’s in there immediately after they leave, and you want to ship it to them. You do not want that person going back into the office, you do not want to have a farewell tour, because invariably what happens is somebody goes back to their office or back to their work station and they start boxing it up and the person in the workstation next door says what’s going on and now there’s a conversation and well here’s my phone number, we’ll talk, here you can have my plants, you know what I’m going to give this booklet with all the key names and numbers I need for my job over to somebody else, cause they’re going to need it when I’m gone… none of that, nothing good happens with that. Now you don’t want to also do the type of thing where somebody is handed a box, marched back to their desk, told to fill the box and everybody's watching, it’s just not good for morale, tell the people to leave, tell them that you’ll ship it to them. If someone says, well my pocketbook and my phone are on my desk then you dispatch somebody from the room to go down there and get the pocketbook and the phone or get the coat out of the coat closet and bring that to the person and say look, we’ll get you everything else and explain to them this is not intended to embarass you, this is not intended to create any scene, it’s just our company policy is we want to make this as simple and unobtrusive as possible for everybody else and that’s it. Then make sure you get your stuff, now if you have somebody who is in marketing and they travel for you all the time, you’re going to have to make sure, that what do they have, what marketing materials do they have, do you care about it? Do they one thousand dollars worth of glossy brochures that you still pass out that you want to get back to them, do they have certain files with certain information that you want to get back from them? Make sure you get it and make sure you have a list of what you need. So I would always have a checklist, so I would sit down with the person and go through the checklist with them. And if possible, the checklist that you have is literally a document that has the person’s name on it, you can put the date at the top and as you go through each item you check it off and you discuss it with them so you know later and as we will talk about later, you know at least you touched upon this. I asked for the passwords, they refused. I reminded them that they have to give me the computer, they told me it’s at home. Whatever it is you want to go through that, and also you want to have the checklist with things you have to talk about with that person, for example, I advised them that they will get their COBRA notification from the outside COBRA administrator that we use. Check that off. Have a signature line at the bottom for the departing employee to sign and ask them to sign it when you’re finished.
Alright, now you’re in the room. Do I give a reason? There are many many people who say oh don’t give a reason, just say I’m sorry this didn’t work out and we’re going in a different direction and so on. My opinion based on the cases that we’ve seen is that you should give a reason because it gives an individual closure and it’s much better for the defense in a lawsuit when they have a reason than saying, I have no idea why this happened, didn’t see this coming, I’m shocked, all my evaluations were great etc. So the reason needs to be supported by the personnel file. Now a typical situation that we see quite a bit is that people will be calling us and saying you know this person isn’t working out and we want to get rid of them and we don’t have a well-documented personnel file, what should we do? Well, number one you should document, you should start documenting the personnel file immediately and secondly as a company I think you’re always going to have to make a decision as to whether or not I’m going to terminate someone right now because it’s for the good of the company with a weak personnel file or I’m going to stick it out, see if they improve, give them another opportunity but start documenting the personnel file. If you’re going to do choice number two and work at documenting the personnel file you have to document it honestly and if the person does better you have to document it that way as well. That’s a business decision the company would make, we’d be happy to talk through it with you as we have more details. Do I give a reason? No, it says No if you talk too much, you don’t want to go in there and start beating somebody up, you want to say to them look we have to terminate you because of your performance, I know you tried hard, I know you’ve been a good team player but there’s just too many mistakes and we just can’t go on with this. You also have to be prepared to cut off the conversation when they start wanting to give you examples of, you know last month I did this and then I went in and I showed it to you and you said it was okay and now you’re telling me…. No, we’re not going to get into that, we’re going to say that based on your body of work thus far, it’s not personal but we need to let you go. I think if you have to choose from giving too much information and not enough that’s a place to give less information.
Point number seven, bring your new documents. Do you have a severance document that you want to have them sign with a release. I can’t tell you how many times, or how many lawsuits we’ve seen where people are terminated and given severance and as soon as the severance runs out and a lawsuit gets filed. Who doesn’t get a release? That’s the first thing we say is why didn’t you get a release? So, it’s very important to get a release. We can talk to you and work with you on getting releases created for you if you don’t have one, getting back to what is your severance policy, if your severance policy is two weeks, you’re going to have to say look we’ll give you an extra two weeks in order for you to sign this release, most releases you’re going to have to give it to them to take home and think about it and get back to you, but at least you’ve handed them that release document. You’re going to give them a document that has benefits explanation and you’re going to get the receipt that I talked about before if possible.
Point number eight, give the employees copies of their old documents. Does he or she have a restrictive covenant document and if so, give them a signed copy. Does he or she owe you for a company loan? And if so, get them to acknowledge that or give them something that shows what it is. Now with regard to the restrictive covenants, you need to look at it again because one of things you need to find out for when you’re doing the release is do I need to put in a new restrictive covenant, you may have signed a restrictive covenant with an employee ten years ago that doesn’t really apply to the circumstances of the context to what they’re doing in your business now and you want to know when they walk out the door, should I be concerned that Bob in accounting who was hired to work on one hundred different accounts really ended up working just on our big account and now Bob’s going to go and take that account with him in a different capacity, so look at your restrictive covenant documents, give them to them and if you need to have it updated, put it in the severance document.
Unemployment. I know that a lot of people will want to fight unemployment, they’ll talk about that this was a for cause termination, there’s a reason to fight unemployment. The only thing I can tell you is that I can’t give you any statistics or quantify this for you but it seems to us that if you fight unemployment you’re inviting a lawsuit, that people who are getting unemployment hopefully are focused on getting a new job and people who aren’t are focused on suing you and justifying why they’re not working anymore and who they can blame for that.
Point ten, have empathy. It’s difficult to find where that line is between being sympathetic with the person that you’re terminating and being one hundred percent honest with them, saying look we have to terminate you because your work performance has been bad or you’ve consistently violated this company policy with regard to whatever the policy was and it’s hard to tell them that and have the right amount of empathy but at the same time being direct in your presentation and that obviously comes with experience, for those of you who find yourselves terminating people quite a bit because you’re in HR or something like that I think you understand what that means. One other point about the reasons for the terminations, especially when it’s a violation of policy, I think when you’re in that situation you want to be thinking about does the policy I’ve found that this employee has violated, does it relate to something that could be discriminatory because it’s applied to someone who’s in a protected group. That’s certainly not the subject of this webinar but I do think it’s something we need to go through. Now, you’ve now finished, you’ve had your conversation, you’ve escorted the person out of the building, you’ve thought of everything you had to do in terms of getting their goods to them and their personal stuff to them, first thing you do after they leave, and hopefully you’ve already shut off their access to the computer, the phone and their key to the front door. The first thing you need to do is go in a room, close the door, shut off your own phone and do an immediate memo to the file of what occured. I met with Bob in accounting, I told him he was gone, this is what I said, this is what Bob said, etc. I think it’s obvious you’re going to have a much better recollection of what occurred right after it than you are the next morning. And since you’re trying to do these terminations towards the end of the day, you better call home and tell your housemates that you’re going to be late for dinner, and get that written down, can’t stress that enough. Okay, so we added one other thing to this presentation which is exit interviews, pros and cons.
At the beginning of the discussion I gave you an example of somebody who had been walked out and was immediately contacted by HR and among the things HR wanted to do was can we do an exit interview.
I think it’s tough to interview a terminated employee as opposed to an employee who has quit. So, and again you have to think about why are you doing this exit interview? Is it a knee jerk thing, are you really trying to improve your organization? Do you really think you can get something from the person, do you want to keep a good relationship with this person? I mean when your top salesperson leaves and quits for another job and you don’t really have any other issues with them, then perhaps you want to do an exit interview to figure out how to get that person back. So, but if it’s somebody who’s terminated, you can find yourself in a bit of hot water doing things you don’t want to do and we’ll get into that in a minute. So, generally I avoid interviewing terminated employees because I just think you may have someone say something that will force you to do an investigation, and that’s pretty much the main reason. But when you are doing an exit interview you have to view the information in context. Most employees who are leaving, they don’t want to burn bridges, they will tell you good things that aren’t necessarily true, I loved it here, I had no issues and so on and so you just have to put that into context and see what it’s worth. I also think when you’re doing an exit interview, you want to have, this is not something where you sit down with someone and say, so how’d you like working here? Or do you have any things you could tell us that we could do better? An exit interview is where you want to have targeted, specific questions that are prepared in advance, and your exit interview format should be something you prepared without a particular individual in mind, that you have that scripted document that you pull out because Bob in accounting has decided to resign and you want to go in there, you obviously will adapt it for Bob but you want to have ideas on what you’re trying to get information on.
In theory, as it says, the exit interview is designed to improve processes and systems and get feedback from the employee. Also, you may get an indication from talking to somebody that your trade secrets or confidential information is at risk, no departing employee’s going to tell you that but when you talk to them you might get an indication or something intuitively that makes you think, I better watch out for this. You may get an indication that there is widespread dissatisfaction of something or other employees that are at risk of leaving and these are all the pros at the top, these are all the reasons why to do that. The employer also in an exit interview has an opportunity to remind the departing employee of his or her non-solicitation and non-compete obligations, so back to our original example, the employee resigns, if HR was there then HR might have had an exit interview and told them all that as opposed to sending them the inevitable, here’s a letter from our legal department telling you that if you screw up we’re chasing you, and lastly you may get some idea of what would be needed to bring that employee back in the future if that’s something you want to do.
Okay, well what are the cons? The cons are, and the biggest one is the departing employee may make a complaint that requires you to investigate. I knew my days were numbered after I told the boss that I wouldn’t go out on a date with her. Now, that kind of comment, the employee’s gone but it’s like a complaint was made and it’s something that you have a need to investigate and that is a path that most employers do not want to go down. Other cons, the interviewer, if they’re not trained, may respond with an admission, yeah you’re not the first person that said Bob wanted to date somebody. Oh my god, you know if somebody makes that statement, get out your checkbook. The other thing that happens quite a bit is that people have been coached by his or her lawyer to try to elicit those kind of statements. A lot of people who resign, before that happens, or a lot of people who think they’re about to be terminated have contacted a lawyer, I can tell you that I had two of those last week, where people called up and said I’m being called into this meeting, it’s kind of at an odd time and I’m not sure what’s going on, I think I’m going to be terminated and what should I say, what information should I get, it’s very easy to tell people what type of comments they’re going to try to get from the employer, so you need to make sure that in an exit interview the person asking questions is well trained. Another place that you get into problems in exit interviews, is the company doesn’t want two people taking out their time to be there, so the meeting was held, they leave, the former employee later sues and says I met with HR and Mark said x, y and z and Mark in HR says no such thing, you’re at the he said, she said stand-off as they say. And the other thing why you should probably have professionals doing that is that the employee in the room is not savvy enough to recognize the need for follow-up investigation. That’s also the reason that in the context of an exit interview the person having done the interview has to leave the room and make notes extensively on what was said. So, best practices for pros and cons of exit interviews.
Know what your goals are and why you’re doing it. Have a script of what you want to cover, this is not a social event to reminisce what happened at the Christmas party. Have more than one person in the room if you can and have the interviewer make notes immediately following the exit interview.
Okay, now I don’t know if we’ve been getting questions, I see that a few of, then this would be a good opportunity to give us questions, I want to thank everybody for participating, there I am, want to thank everybody for participating and certainly feel free to contact us by phone or email if there’s anything we can help you with and let me get to some of the questions now, Jennifer…
JENNIFER: Okay. Does an employer have to give a warning before termination?
JEFF: Well, the first thing your looking at is the termination something that would require immediate termination as we discussed at the beginning. I don’t think you have to warn somebody if you’re going to terminate them for stealing and you’ve caught them red handed. I do think the, if you can give warnings either through your evaluation process, that’s better and really what we’re looking at is a continuum of what is most likely to keep the employer out of a problem situation. So, the more warnings a person has, and the more consistency you have with whatever your warnings policy is in your company handbook, the better off you are. Must you give one before terminating them? No. You’ll just have to deal with it on the other side.
JENNIFER: Okay. What is the best way to obtain company property following a termination in the event that the property is not currently in the office?
JEFF: Well, number one you want to see what type of policy your company has for giving out the property, for example, if you give your employees a laptop and they are free to take that with them wherever they go, you should have a laptop policy that they signed off on, that acknowledges whether they can use it for their own personal use, whether it’s strictly for business use, where they can take it, who’s bearing the risk of loss if somebody steals it out of their car or their home, who’s insuring that and ultimately who owns that laptop and something that clearly says that they have to return it. If you can have that policy in place, that would be step one, if you have, either way, next thing is if they don’t have it with them, you’re going to send them a prepaid Fedex or UPS box so they can plop it in there and send it right back to you, you’re going to make it easy for them. Or you’re going to tell them that you’ll send someone over to pick it up but I would only do that if it’s an independent third party, if that’s easy. You can have them, you really don’t want them coming back to the office to drop stuff off, so in most cases I would be sending them a box. If they just refuse and ignore you and now you’re calling us and saying the guy has a laptop that he has to give back to us, I would be telling you well I don’t know that you want to sue somebody for that.
JENNIFER: Okay. What are the best practices for use of HR formal forms, in other words PIP, coaching forms, etc. as opposed to conversation which is memorialized in personnel file? Sometimes supervisors are reluctant to use official forms as opposed to documented conversation for fear of reactions you’ll receive, FPA.
JEFF: It, look I think if you’re putting an employee on a PIP that you probably at least want to give the employee a copy of the form and an opportunity to sign it or comment on it, like you might do in your evaluation, that would be the ideal, if you have a concern that the employee’s going to react negatively to that then you want the supervisor who is doing that to be using your form as the basis for her notes so that she is writing down that she counseled with the employee and what occurred and what the employee was told, I think that’s probably your second best but ideally you’re sticking with your forms because it’s giving you consistency and it’s also confirming that you have notified the employee and sometimes employees will say I didn’t understand that to be what I was supposed to be doing, I didn’t understand that I was on a 60 day PIP as opposed to a 90 day or whatever, I know from the question it seems there’s a concern with using the form so at least have the person who’s giving the information know that and put it in the employee’s file.
JENNIFER: Okay. How do you handle a call for a reference related to a terminated employee when they continue to ask questions related to their performance, or would you hire them back if given the opportunity?
JEFF: Well, typically those calls are coming from one of two sources, either the company that’s hiring the person is calling or a company that is, the employer’s using as an outsource facility to gather information on the departed employee and I know you get the calls and I know the most typical question is well would you hire them back and I think the response to that has to be our company policy is to only provide you with the dates of employment and the position held and I’m sorry but I can’t give you any information beyond that and don’t, people are persistent, they will keep asking the question and you have to stick to your guns.
JENNIFER: Do I have to have a terminated employee sign an acknowledgement form?
JEFF: Well, again, best practices if you can get them to sign an acknowledgement, that’s great but a lot of people won’t, or a lot of people will say I want to contact my lawyer or whatever, so yes if you can do it, is it an absolute must? Well you can’t force people to do things, by the way as another good practice, when you walk into that room with that checklist you want them to sign, have copies, have your copy and their copy so whatever they have you’re able to give them a copy of.
JENNIFER: Okay. That’s all the questions that have been submitted.
JEFF: Okay, well again we want to thank everyone for participating and we hope this was beneficial and if there’s anything else we can do, you have our contact information, thanks.
JENNIFER: And just to let everybody know we do have another upcoming webinar it is on September 11th and it will cover the fair labor standards act and the underlying state law and again that will be held on Wednesday, September 11th and we hope to have you join us for that one as well. So thank you all for participating and have a great day!