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Review all employment documents
A thorough review of an employee’s personnel file, before making a decision to terminate, allows the employer to make an informed termination decision with managed risk. For example, what rights and obligations does the employer have under the employment documentation? Is there sufficient documentation of performance issues, performance improvement plans and/or warnings to substantiate a legitimate, non-discriminatory business reason to terminate? If not, then delaying the termination to create such a record may be a worthwhile exercise to mitigate potential litigation risks.
Internal investigation of complaints
Has a complaint been made by or about the employee, and if so, is an investigation required by law or company policy? If an investigation is warranted, it should be completed before the employee is terminated to mitigate risk of retaliation or other claims. Care should be taken to conduct any investigation so that all applicable privileges are preserved, and if appropriate, a meaningful record of findings is made.
If misappropriation of company information or inappropriate behavior with respect to the company’s computers or systems (for example, excessive internet usage) is suspected, consider whether to ‘shadow’ or monitor the employee’s computer and whether a forensic analysis should be conducted. A company policy should be in place stating that employees do not have an expectation of privacy in workplace computers.
Limit access to information
Consider the extent to which the employee has access to confidential, proprietary, or sensitive information, and whether access should be limited once the employer has determined to end the employment relationship. An employee’s communication with vendors and clients may need to be limited to prevent the employee from disparaging the company or misappropriating proprietary information or business relationships.
Immigration and foreign law issues
If the employee is a foreign individual working in the US on a work visa, consider additional notice should be given to the employee to address immigration status. If a foreign national is in the US, whether on secondment or as a local hire, then contractual rights and/or all applicable foreign laws must be considered as part of the exit strategy.
Conduct an effective termination meeting
The termination meeting should be attended by two employer representatives; one as a witness and one to deliver a carefully scripted termination message to create a written record of what is (and isn’t) said concerning the reasons for termination, and to keep the employer on topic during what is often an uncomfortable conversation.
Reclaim company property
Consider what company property, and proprietary or confidential information (in any format) the employee has in his/her possession (wherever located), how those materials should be returned or destroyed, and whether employment documentation provides for a particular protocol.
Keep it confidential
It is in the employer’s best interest to keep information relating to employee terminations strictly confidential. Only those who must know about the termination should be privy to the details. As appropriate, a statement should be prepared in advance for internal distribution and/or the media; however, due care should be exercised in determining content and deployment to avoid claims of defamation, disparagement and tortious interference.
Papering the separation
When required by contract or when needed to protect the employer, the employee should be asked to execute a separation agreement and general release, as a means of mitigating litigation risks.
If the employee is subject to restrictive covenants that survive termination, such as non-competition, non-solicitation, and non-disclosure of confidential information restraints, a letter should be sent post-termination to create a record that the employee was reminded of his/her obligations and the employer’s intent to vigorously enforce them.
Advice of counsel
Given the nuanced nature of employment laws, and the potential for litigation and reputational risk, employers are well-advised to enlist the assistance of employment counsel early in the process to assess any risks of termination and how best to manage an employee exit.
NOTE: This checklist is intended to serve as a guideline of general best practices which may need to be tailored depending on the employee’s seniority and/or access to confidential information.