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Disclaimer



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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