Employment Termination Best Practices, Part Two: Exit Interviews and Post-Termination Activities

In my previous post, I shared three best practices for preparing for a potential employee termination.  Here are two additional steps to consider in the termination process:

1. Prepare for possible exit interview scenarios.

Terminations are never easy and often become very personal.  In most situations, the key is to conduct the termination meeting as respectfully as possible.  In order to do so, it is advisable to have a plan addressing the following points:

a.  Who will be at the meeting?  Whenever possible, have two company representatives present, even if one is simply there to take notes.  Consider security outside the room in those situations where the employee may become volatile.

b.  What security measures will be taken while the employee is in the termination meeting?  Consider placing limitations on or completely shutting off access to company e-mail, company credit cards and company computer systems.  If the termination will not occur until a few weeks later, or transition is required from the employee, then completely shutting off access may not be the best course.  Limiting access to certain areas of the computer systems may be appropriate.

c.  What will be said?  Have a very short introduction, convey the fact of termination, reason(s) for termination, the last day of employment, how wages will be paid and what, if any, obligations the employee will continue to have.  If severance will be offered, explain the severance amount, as well as the terms and conditions to receiving severance. 

d.  Have a written summary or separation agreement which reflects what has been said.  If severance is being offered, be sure to tell the employee to review the document carefully, clearly communicate how much time the employee has to consider the offer of severance, and give him or her a full original of the document.  If severance is not being offered, then a simple letter confirming the termination, last day of employment, reason for termination, and reference to the last pay check being provided with the letter and referencing notices required by law may be sufficient.

e.  Have the employee’s final paycheck ready.  In Massachusetts, an employee must be paid all accrued but as yet unpaid wages on his or her last day of employment.  This includes any accrued but unpaid vacation time as well as commissions and bonuses to the extent earned and calculable.

f.  Have a proposal prepared to address reimbursement of money owed by the employee to the company, return of company property, providing to the employee his or her personal property at the company and other miscellaneous matters.

g.  Remind the employee of any post-termination activities and provide him or her with a copy of any applicable documents containing such restrictions so that the employee has a copy readily available.

2. Follow-up on post-termination activities.

Once the employee becomes a former employee, the time for post-termination restrictions begins.  Many companies intend to protect their confidential and/or proprietary information and trade secrets, at the very least.  Some will protect their existing and prospective customer relationships, and others still will protect their employee relationships.  Because the enforceability of these post-termination restrictions are very fact-based, and are often based on the time when the agreement was executed or other times during the course of the employee’s employment, it is best to review the documents well beforehand to ensure that they are enforceable.  Finally, periodically checking the former employee’s activities through industry relationships or via social media may be helpful to timely capture a breach or threatened breach.