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Techniques for Terminating Employment
Silverman Bernheim & Vogel
EXIT INTERVIEWS
It is suggested that exit interviews be conducted upon all resignations and
terminations. Exit interviews may alert the employer to problems in the
workplace and may tip the employer off that a lawsuit is forthcoming.
Exit interviews provide the employee an opportunity to vent emotions in
private. The following steps are suggested when conducting exit interviews:
a. The interview should be conducted in "neutral" territory, for example
in the personnel office, but in any case should be where there is privacy
and interruptions will be at a minimum. The exit interview should be kept
brief and to the point. Do not argue with the employee.
b. Be prepared to discuss and/or present any documentation you may have
kept in the ordinary course of your business that reflects shortcomings
in the employee's performance. If there are no such records, make a memo,
to be placed in the employee's personnel file and to be used for your
reference during the exit interview, listing all of the events and/or
actions that lead up to the discharge, including where you can, all
dates and circumstances. Include policy violations, if any, and corrective
and/or disciplinary actions taken, if any. Also include any instances where
the employee was made aware of the problems along the way. Always give the
employee the real reason for his or her termination.
c. Have someone other than the "terminator" in the room taking notes of
everything that is said by the employer and by the employee (like minutes,
but try to quote pertinent comments by the employee whenever possible, for
example, "Yes, I agree I did not complete that project on time.")
d. Tell the employee before you start the interview why the other person
is in the room-i.e., to take notes of the meeting so that there is no
misunderstanding later on of what was said, offered, rejected etc.
Tell the employee, before you start the interview, that he or she
will be given the opportunity to review the notes to see if there is
anything stated therein which the employee does not agree accurately
reflects what is said.
e. At the exit interview make sure to cover all of the above information
(whether reflected in business records or a memo you prepared for purpose
of the exit interview). Make sure you give the employee the opportunity to
address the issues that you raised. In addition to communicating the reasons
for the employee's discharge, and if the employee is not too upset,
follow whatever procedures you normally would with regard to return of
company property, severance, if any, COBRA, a final paycheck etc.
(This can also be done at a later time.)
f. After you have completed your discussions, ask the employee to review
the notes that were taken during the exit interview and have the employee
sign and date the notes. If necessary, allow the employee to indicate that
he or she is signing the notes only as verification that the notes reflect
what was said, but that the employee does not agree with the reasons given
for the termination.
g. Avoid using terms such as "for cause" or any phrase that could be
construed as being biased, for example, age-related comments such as,
"you're worn-out," we need fresh blood," etc., or gender-based comments
such as, "women belong in the kitchen," "you're not strong enough to do this
job," etc.
PRIVACY CONSIDERATIONS
Defamation cases, which involve the publication of false facts conceming the
plaintiff, often arise when a potential employer contacts a current or prior
employer to confirm. an applicant's ability or trustworthiness. The problem
surfaces when the current or former employer informs the potential employer
of misconduct or performance evaluations which may result in the applicant
being rejected. If the misconduct did not occur or took place outside of work,
or if the performance evaluation is false, the current or former employer may
be subject to a defamation action.
So, what should employers do when asked for a reference for a former employee?
A continuing practice is still to say nothing qualitative about the former
employee, and to provide only basic information, such as dates of employment,
salary and position. Human resources personnel must be counseled, however,
to apply this "no comment" rule evenhandedly so as to avoid a claim that
the employer is discriminating by giving a good reference to some
ex-employees while adhering to the "no comment" rule with others.
Of course, if the employer is aware that a former employee has dangerous
tendencies, the path is less clear. Employers who choose to provide
more substantive information can protect themselves from lawsuits by:
(1) providing information that is correct, truthful, and not malicious;
(2) backing up statements that the employee was discharged for misconduct
or poor performance with disciplinary reports or other appropriate documentation.
For more information contact Lawrence M. Silverman.
Copyright 2002 by Silverman Bernheim & Vogel - All Rights Reserved.
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