As regular readers of this blog know, a day that is scheduled to be filled with relatively routine and non-controversial matters can get turned upside and require immediate action without any advance notice. One such situation occurs when information comes to light that an employee is unfit to continue in his or her current position and should be terminated. Even if in-house counsel and the business decision-makers have complete confidence that the information justifies termination, however, there is a risk associated with not giving the employee a chance to at least explain his or her actions.… Keep reading
Many companies try not only to be profitable, but also to be good employers. Some employers still fear, however, that praising employees too much for good work may create some workplace liability. Fortunately, the U.S. District Court for the District of Massachusetts clarified just before the Thanksgiving holiday in Cagnina v. Philadelphia Insurance Companies, that it is, in fact, okay for employers to give thanks (and even unabashed praise) to their employees.… Keep reading
In Hedden v. Kean University, the New Jersey Appellate Division ruled that an email sent by the University’s women’s basketball coach to the school’s in-house counsel was privileged even though a copy also was sent to the University’s Executive Vice President of Operations and later disclosed to the NCAA. The opinion, as well as the strong dissent, address several key aspects of the privilege that in-house counsel are well advised to keep in mind.… Keep reading
Many a day, I answer phone calls and emails about non-performing or even “toxic” employees who must be terminated. After grappling with the legal “dos” and “don’ts,” about half of the time the employer asks, “Why did I ever hire this person?”
The answer is not purely a legal matter. Marc Andreessen, a very successful entrepreneur, venture capitalist and software engineer, suggested his answer in a blog post entitled, “How to hire the best people you ever worked with,” several years ago. Simply stated, he recommends that employers take time to look at their criteria and their process. There are certainly many smarter and wiser than I who have written on the topic of the “perfect hire,” but after years of advising clients on terminating employees, I’d like to share a few tips that I’ve learned about hiring employees, in part, inspired by Andreessen’s sage advice.… Keep reading
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 … Keep reading
Employment attorneys and in-house counsel are used to the 4 p.m. phone call informing them that an employee must be terminated “today,” followed by a request for a separation agreement or advice on how to handle the termination. More often than not, after asking a few questions we discover that, perhaps, the termination should be slowed down to ensure that we do it right. So, how should you prepare for a potential termination? Get started with these three tips:
1. Assess the reason for the termination.
Often, the reason given for terminating an employee is that he or she was not a “good fit” – a conveniently vague term that ranges from a host of legitimate business reasons to code for unlawful discrimination. Consequently, you need to drill down to what the real reason is for selecting this individual for termination at this time. Eligibility for unemployment benefits and continuation of certain other benefits, such as health insurance, may be dependent on the reason for termination.… Keep reading