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Breaking Up is Hard to Do: Effective Employee Terminations
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  1. Presented by: John Remy | Jackson Lewis | Reston, VA Alyssa Senzel | Blackboard Inc. | Washington, D.C. June 6, 2012 Breaking Up is Hard to Do:Effective Employee Terminations

  2. Agenda Policies and procedures relevant to termination. Other documentation (e.g. annual reviews, performance improvement plans). Discipline/counseling/investigation. Separation documentation (e.g., separation and release agreement, confidentiality reminder, exit interview documents).

  3. Employment Documents Crucial to Supporting Termination

  4. Documentation • Employment Documents Crucial to Supporting Termination • Applications • Job Descriptions

  5. ADA Issues

  6. Documentation • Employment Documents Crucial to Supporting Termination • Employee Manual policies such as Standards of Conduct; Employment At-Will Policy; Disciplinary Policy; Manual acknowledgment form

  7. Documentation • Performance Reviews • Is employee meeting performance standards? • Opportunity to discuss performance problems • Map future goals and expectations • Written, timely, thorough, fair, accurate, realistic, consistent, specific • Should be signed and dated

  8. Discipline and Counseling • Disciplinary memos and counseling • Detailed and specific, not general • Timely • Consistent with how others who are similarly-situated have been treated • Was the employee aware of applicable company rules and policies and have they been enforced consistently? • Has there been prior disciplinary action? If so, does it need to be referenced again?

  9. Discipline and Counseling (cont.) • Has there been an investigation? • If so, has it been done in good faith and are the employer’s conclusions reasonable? • Should be followed up in writing even if you aren’t preparing a formal document. • Inform employee of consequences if conduct is repeated. • Reaffirm at-will nature of employment.

  10. Types of Employee Discipline Oral warning Written warnings/reprimands Probation Suspension Termination

  11. Benefits of Progressive Discipline • Fair warning. • Projects a sense of stability and fairness on the part of the employer. • Creates a clear set of rules.

  12. Disadvantages of Progressive Discipline A progressive discipline system can be a double-edged sword.

  13. Policy Disclaimers • A progressive discipline policy should contain sufficient language disclaiming any contractual intent.

  14. “Just Cause” Collective bargaining agreements

  15. Immediate Termination? How severe was the conduct? (e.g., was there violent or criminal behavior?) What do your company policies say? Would a jury think what the company did was fair?

  16. Documentation of Employment Investigations • If an investigation is necessary, it should be completed promptly. • Typical investigations documents: • Notes • Summary of allegations • Memo to accused • Investigation summary 16

  17. Reality Check Prior to making any employment decision, always: • Review the applicable handbook/policies. • Determine what the employer did in the past under similar circumstances. • Determine whether past discipline, if any, is documented and whether employee was warned of consequences for repeated violations. • Ensure that the employee’s legally protected status had nothing to do with the decision.

  18. The Exit Interview

  19. Appeal Procedure • One method of dispute resolution is to have an internal appeal process. • Keeps matters in-house longer • Demonstrates fairness

  20. Separation Agreements and General Releases • Many employers ask departing employees to sign release forms waiving their right to bring any employment-related legal action against the employer. • Must be consideration for such a release.

  21. Separation Agreements and General Releases Release of claims – federal and state law Severance benefits Return of property Reminder of confidentiality/non-solicitation/non-competition Non-disparagement Is employee over or under age 40? Is this a single termination or a group termination?

  22. Older Workers' Benefit Protection Act ("OWBPA") • The OWBPA provides that an individual may not waive any right or claim under the OWBPA unless the waiver is knowing and voluntary. • 21 days to review; 7 days to revoke. • If group termination, 45 days to review. Also, must provide information regarding the “decisional unit” and the job titles and ages of those selected and those not selected for termination.

  23. Tips For Controlling Litigation Exposure Regularly audit your employment policies and procedures. Ensure that disciplinary and termination procedures are being followed. Ensure that HR and management are documenting key events accurately and in a timely manner. Ensure that the company is able to articulate clearly the employee’s misconduct or performance problems. Ensure that the discharge decision is communicated properly. Partner with the HR team.

  24. Questions? John RemyJackson Lewis LLPManaging Partner – Washington, D.C. Region Office(703) 483-8321RemyJ@jacksonewis.com Alyssa SenzelBlackboard Inc.Assistant General Counsel(202) 463-4860alyssa.senzel@blackboard.com

  25. Thank You! Workplace law. In four time zones and 49 major locations coast to coast.