An unfortunate part of doing business is occasionally having to terminate employees. Regardless of the reason for the termination, employers must be careful in how terminations are carried out. A substantial number of lawsuits filed by former employees arise because of how the termination took place, not why it took place. One good practice to ensure that terminations are handled properly is to conduct a termination meeting.
Employers may wish to consider the following steps in planning and carrying out a termination meeting. First, arrange for the meeting with the employee as soon as possible after the termination decision has been made. Waiting too long can allow rumors to spread and misinformation to get out which can make the process more difficult. Second, arrange the meeting at a time and place that will ensure privacy and minimize interruptions. Third, to minimize conflict between the employee and supervisor, consider having someone other than the employee's immediate supervisor conduct the termination meeting, such as the Human Resources manager or the employee's department manager. Fourth, it is a good idea to have a second manager or supervisor attend the termination meeting and serve as a witness to what was said or done at the meeting, but not otherwise actively participate.
The person conducting the termination meeting should briefly state the issues that precipitated the meeting, taking time to review previous discipline that supports the termination. Be sure to give the employee accurate and true reasons for the termination – reasons given to the employee that are later proved incorrect will substantially undermine the employer's defense if the employee sues the employer.
Be matter of fact, yet respectful to the employee. Do not allow the meeting to become argumentative. If the employee becomes argumentative or threatening, terminate the meeting and leave the room. Perhaps most importantly, be brief. Try to finish the meeting in less than 15 minutes. At the conclusion of the meeting, hand the employee a letter of termination, and briefly explain its contents. Be sure to provide the employee with a copy of the Employment Development Department (EDD) "DE 2320" pamphlet entitled "For Your Benefit," which informs employees of unemployment benefit rights.
Finally, unless there is a real fear of theft or destruction of company property, the employee should be allowed to privately gather personal items and leave the premises. Employers who require that the terminated employee be "escorted" from the building or monitored while cleaning out his or her desk could increase their risk of a lawsuit. Remember, it’s often “how” a termination is carried out that causes problems, not “why.”
This article is for education and information purposes only; it should not be construed as legal advice. If you have an employment law question for inclusion in a future article, contact Brett T. Abbott at Gubler, Koch, Degn & Gomez LLP (bta@thecalifornialawyers.com). For specific employment law advice or other legal assistance, contact Gubler, Koch, Degn & Gomez LLP , (559) 625-9600, 1110 N. Chinowith St., Visalia, CA 93291 (www.thecalifornialawyers.com). Read Mr. Abbott’s blog on employment law issues at http://work-law.blogspot.com.
Wednesday, April 29, 2009
Tuesday, April 28, 2009
Avoiding problems when giving references to prospective employers
In today’s economic climate many employers are left with no option but to let employees go. A natural consequence of severing ties with an employee is having to later provide references to prospective employers. In order to avoid potential liability for defamation or slander, employers should follow certain guidelines in giving references.
First, an employer should give advance notice of the reference. When terminating the employment, the employer should inform the employee in advance of what facts with be given in future references. Avoid simply saying that the reference will be “good” or “favorable.”
Second, be careful to avoid conclusions. Calling a former employee “insubordinate” or “incompetent” can create a potential lawsuit for defamation. Instead, state that the employee refused to follow directions, or did not meet specific standards. Remember that not all questions have to be answered, especially those that call for conclusions – such as “Would you rehire this person?”
Third, disclose only truthful information and make sure that personnel file information is factually correct. Supervisors should be trained to place only accurate, verifiable information in personnel files – a reference is only as truthful as the underlying information on which it is based.
Fourth, it’s almost always a good idea to obtain a signed release from employees regarding specific information that may be disclosed to prospective employers. The release should provide the employee with as much information as possible about information to be disclosed, including dates of employment, job titles held, a statement about the employee’s work performance, and the reason for termination of employment.
Fifth, designate only a limited number of people within the organization to give references. It is wise to notify employees, preferably in the Employee Handbook, that references will be provided by only one or two designated people. This practice will minimize the risk of contradictory references on behalf of the company, and ensure that reference standards are kept.
Sixth, avoid responding to oral references requests. Require all employees asking for references to request the reference in writing, and to provide a signed statement from the employee authorizing the prospective employer to obtain a reference. Also, reply only in writing to reference requests and keep a copy of all documentation.
While most references given to prospective employers will not result in problems down the road, taking some minimal precautions, as outlined above, can save companies substantial amounts of time, money, and stress. Termination of employees is part of doing business, and so is giving references. Make sure you do it right.
First, an employer should give advance notice of the reference. When terminating the employment, the employer should inform the employee in advance of what facts with be given in future references. Avoid simply saying that the reference will be “good” or “favorable.”
Second, be careful to avoid conclusions. Calling a former employee “insubordinate” or “incompetent” can create a potential lawsuit for defamation. Instead, state that the employee refused to follow directions, or did not meet specific standards. Remember that not all questions have to be answered, especially those that call for conclusions – such as “Would you rehire this person?”
Third, disclose only truthful information and make sure that personnel file information is factually correct. Supervisors should be trained to place only accurate, verifiable information in personnel files – a reference is only as truthful as the underlying information on which it is based.
Fourth, it’s almost always a good idea to obtain a signed release from employees regarding specific information that may be disclosed to prospective employers. The release should provide the employee with as much information as possible about information to be disclosed, including dates of employment, job titles held, a statement about the employee’s work performance, and the reason for termination of employment.
Fifth, designate only a limited number of people within the organization to give references. It is wise to notify employees, preferably in the Employee Handbook, that references will be provided by only one or two designated people. This practice will minimize the risk of contradictory references on behalf of the company, and ensure that reference standards are kept.
Sixth, avoid responding to oral references requests. Require all employees asking for references to request the reference in writing, and to provide a signed statement from the employee authorizing the prospective employer to obtain a reference. Also, reply only in writing to reference requests and keep a copy of all documentation.
While most references given to prospective employers will not result in problems down the road, taking some minimal precautions, as outlined above, can save companies substantial amounts of time, money, and stress. Termination of employees is part of doing business, and so is giving references. Make sure you do it right.
Subscribe to:
Posts (Atom)
