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Breaking Up Is Hard to DoManaging Challenges that Arise When the Employment Relationship Ends

© Littler Mendelson, P.C. | 2019 Proprietary and Confidential

Agenda

• Introductions

• Management of Common, But Difficult Termination Issues

• Employment Termination Checklists

• Other Important Considerations

• Question and Answer


Introductions

TODD CHURCH

Shareholder

Littler Chicago

[email protected]

312.795.3218

STEPHANIE MILLS-GALLAN

Associate

Littler Milwaukee

[email protected]

414.978.4608

© Littler Mendelson, P.C. | 2019 Proprietary and Confidential 4

Make Sure You Know

• How long has the employee been employed?

• Is the employee covered by a CBA?

• Is the employee a member of a protected group?

• Did anyone make any promises of job security to the employee?

• Trade secret or non-compete issues in play?


Make Sure You Know

• Will the termination comply with the company practices in every respect?

• Have other employees been terminated for the same conduct?

• Can you prove the employee knew, or had reason to know, the conduct was wrong, or performance inadequate?


Make Sure You Know

• How many written warnings has the employee been given?

• How long ago was the last warning?

• Were the warnings specific?

• Were the warnings documented?

• When was the last performance appraisal and what does it say?

• Are there eyewitnesses? ⎻ Are they reliable and available?⎻ Can you get written statements?


Make Sure You Know

• When was the last merit salary increase?

• Has the employee been recently promoted?

• Has the employee been given a reasonable time to improve?

• Was employee promised a specific period in which to improve?


Make Sure You Know

• Has the employee made a report of illegal conduct on the part of the company or its management?⎻ Was it investigated?⎻ Was it protected activity? Made in good faith?⎻ Should the report/investigation delay execution of the

termination decision?

• Should you ask if the employee has anything to report? ⎻ Which employees? ⎻ Is that part of an exit interview process?⎻ Give a reminder about the anti-retaliation policy?


Make Sure You Know

• Did the employee recently sustain a work-related injury or illness?

• Has the employee been, or claimed to be, a spokesperson for other employees regarding working conditions?

• Does the employee appear to be getting legal advice, keeping a diary, or trying to commit you to particular positions?

9


Make Sure You Know

• Is there a personality conflict between the manager and the employee?

• Is the manager angry with the employee?

• How long has the manager supervised the employee?


Employee Resigns With

2 Weeks’ Notice


More Notice than Necessary

• Payment in lieu of working the notice period⎻ In exchange for a release and severance agreement

• Consistent application of practices

• Enough time to transition work? ⎻ What if employee does not cooperate in transition?


Request to Rescind Resignation

• No requirement to accept rescission of resignation.⎻ At-will employment

• Consider reasons for rescission⎻ Resignation policy

⎻ Outlining how much notice is requested (not required)

⎻ Eligibility for re-hire


“I didn’t meet my goals because of my medical condition.”


“Please give me another chance to

…”

“mend relationships”

“improve performance ”


Termination Meeting


Pre-Meeting Considerations

• Identify observer

• Schedule for late in the workday

• Private location (off site)

• Security and risk assessment resources if needed

• Determine effective date⎻ Immediately or notice period

• Prepare talking points for what will be said and by whom

• Prepare materials that must be provided at time of firing⎻ Final pay, termination notice, severance

agreement, etc.


Other Security/Risk-of-Violence Considerations

*Can’t be too cautious*

• Update criminal background check?− What can you obtain and still comply with the FCRA?

− Any domestic violence crimes?

• Check for gun license?• Law enforcement notice or physical presence


Severance Agreement Considerations

• Review/update form agreement⎻ Compliance with requirements under Illinois Workplace

Transparency Act (effective 1/1/20)

• Include an arbitration clause?

• Waive an arbitration agreement?

• Comply with #MeToo state laws

• Supplemental release agreement necessary?


Giving the Bad News

• Be calm and professional

• Get to the point

• Briefly explain reasons (but not too specific)⎻ What will employee say he/she was told?

• Be brutally honest

• Take notes

• Listen/respond

• Don’t debate, sympathize or sugarcoat.


Final Documents

• Unemployment Notice⎻ Legal obligation to respond to claims (federal

Unemployment Insurance Integrity Act)

• COBRA notices

• Reason for termination

• Final wages (including accrued PTO/vacation)

• Copies of non-compete, non-disclosure, arbitration, other agreements


“To-Do” List During the Termination Meeting

• Terminate the employee’s access to the company’s computer network, including email (this includes any remote access), and arrange for reply message and/or designate someone to review/respond to inbound messages

• Terminate the employee’s access to telephone/voicemail system and record a new greeting


“To-Do” List During the Termination Meeting

• Terminate company-provided credit cards, telephone charge cards, and Internet access held by the employee

• Arrange for return of all company property, equipment, documents, access cards, passwords, credit cards, calling cards, laptops, cellular telephones, etc. from the employee

• Change common passwords and locks, if necessary


“To-Do” List After the Termination Meeting

• Inventory the returned property to ensure that the employee has returned all company property

• This should include documents that the employee may have had access to during his employment and are considered confidential (e.g., personnel files, sales reports, customer lists, training materials, etc.)



• Do not let the employee have time alone in office after the termination

• If necessary, tell the employee that a company representative will inventory, pack, and send all personal belongings

• Update websites and social media sites to remove employee



• Advise managers on post-termination obligations (e.g., anti-defamation, anti-retaliation) and communications⎻ To other employees ⎻ To the public⎻ To potential employers

• Monitor social media postings by employee to prevent damage to brand

• Follow same process for everyone, even if amicable


Employee complains of illegal conduct at time of departure.


“J’accuse!”

What should you do if an employee complains of illegal conduct at time of departure?

• Resignation vs. Termination?

• First time?

• Hold termination in abeyance?

• Investigate.⎻ Don’t get derailed by excuses. Stick to

decision and go back and investigate.⎻ Exception: If termination was not

properly supported/documented


The Heat of the Moment Break up


Reducing “Rogue” Behavior

• Require all terminations be run by HR or upper management⎻ 3rd party involvement reduces subjectivity and emotions

• If managers have termination authority, train them on end-of-employment issues⎻ i.e., final wages

• Develop “termination alternatives” to sustain manager’s authority and reduce liability⎻ Disciplinary suspensions


Wrap Up

• Consistency in addressing employee complaints

• Using checklists and consulting policies to make employment decisions in a methodic manner

• Planning and preparing paperwork in advance of termination whenever possible

• Mitigating and changing decisions when necessary based on new information


The Termination Checklist


Termination Checklist

• Gather information

• Proper documentation⎻ Privileged vs. non-privileged

• Follow investigation procedures

• Review advantages & disadvantages

• Ensure appropriate corrective action was taken/considered

• Consult HR• Say the right thing post-termination• Avoid surprises• Impact of dismissal on employee

This information provided by Littler is not a substitute for experienced legal counsel and does not provide legal advice or attempt to address the numerous factual issues that inevitably arise in any employment-related

dispute.Although this information attempts to cover some major recent developments, it is not all-inclusive, and the

current status of any decision or principle of law should be verified by counsel.