Combatting the risks of departing employees can be tricky. However, employers should feel confident in their personnel decisions. This post provides some helpful guidance to employers on how to best navigate various interactions after an employee departs their organization—whether voluntarily or involuntarily.
Exit Interviews
An exit interview may be the last interaction an employer has with a departing employee, and it can be a good opportunity for the employer to receive honest feedback—feedback that they might not receive from other employees who are still employed by the organization. Employers often receive a mixed bag of positive and negative feedback during exit interviews. Make sure to celebrate the positives and use the negatives to build a better workplace.
As discussed in Part Ten of this blog series, conducting exit interviews for terminated employees is not common. Some employers will escort employees off the premises immediately after termination, so a formal exit interview is not possible. Despite their rarity, exit interviews for terminated employees still have some organizational benefits. For example, if the employee has a specific grievance, it might be better to hear it sooner rather than later, from their attorney or from the Equal Employment Opportunity Commission.
Exit interviews should be conducted by human resources. However, employers may wish to include the departing employee's manager or supervisor, or perhaps even legal counsel. If the departing employee ever decides to bring a lawsuit against their former employer, the presence of these other individuals may help avoid a "he said, she said" situation.
No matter how and when an employer decides to conduct exit interviews, it is important to create an environment where the departing employee feels heard and is comfortable providing honest feedback. Whoever conducts the exit interview should reassure the departing employee that their responses will be kept confidential and provided anonymously to management. Keeping these tips in mind will allow exit interviews to be a positive interaction, rather than one that leads to more problems down the road.
Announcement of Employee Departure
In her blog post earlier this week, Raika Casey discussed how employers can best communicate termination decisions to the employee being terminated. However, the departure of an employee from an organization may also have an impact on workplace culture. As the rumor mill churns, other employees may begin to fear for their own job security. This can lead to a breakdown of trust, which may have long-term effects.
Employers should first consider whether it is necessary to make a post-departure announcement. This will depend on the nature of the workplace, the employee's role within the organization, and whether the employee's departure was voluntary or involuntary. After weighing these considerations, employers can determine what type of announcement is appropriate.
For example, the departure of a high-level executive at a publicly traded corporation may affect the value of the corporation's shares. Shareholders will likely want reassurance that the executive's departure was routine and that the future of the company is secure. Alternatively, the departure of other types of employees may only have an internal impact on the organization. In these situations, it may only be necessary to inform the departing employee's immediate teammates.
After deciding whether an announcement is necessary and to whom the announcement should be made, employers should decide what information to communicate. When it comes to post-termination announcements, less is usually more. Post-termination announcements should be clear, brief, and general. Unless more information is necessary, stick to the facts – "[Employee name] is no longer with [organization name]. Our transition plan is [insert plan]. If you have any questions, speak to [HR or counsel]."
If an employee is terminated for misconduct, their coworkers are likely already aware of the reasons behind the termination. It is best to avoid stoking the emotions of your employees. Furthermore, discussing reasons for terminating employees may have consequences for future lawsuits for discrimination, retaliation, or defamation. For example, an employee who believes they were wrongfully terminated may ask a former coworker to be a witness on their behalf, and that coworker may choose to testify about anything their employer has said regarding the employee's termination.
Finally, employers should communicate any next steps or transition plans, if applicable. In some situations, employers will want to announce the start of the search process for the departing employee's replacement. In other situations, employers should inform their employees who will handle the departing employee's responsibilities, whether on a temporary or permanent basis.
Reference Checks
Reference checks are common practice across most industries, and employers should expect to receive reference requests from their former employees' prospective employers. However, employers are not required to provide references for former employees. If an employer does decide they are willing to serve as a reference, it is important to have clear policies and procedures in place.
Employers should determine what information they are willing to share in response to a reference check. Often, reference checks consist only of requests for general information, such as an individual's job title and responsibilities, dates of employment, and salary. Other times, employers will be asked to provide more detailed feedback. For former employees who were top performers and left on good terms, employers should feel comfortable giving a good reference. However, for employees who left on bad terms or were terminated, it is best to keep things general. Unless the employee has authorized their former employer to provide greater detail about their employment history (as discussed below), a good rule is "less is more."
Ohio law gives employers general civil immunity for any harm resulting from responses to a reference check. R.C. 4113.71(B). However, there are two notable exceptions. First, employers may not disclose information they know to be false, with the intent to mislead the person or organization requesting the reference, with bad faith, or with another malicious purpose. R.C. 4113.71(B)(1). Second, employers may not disclose information that constitutes unlawful discrimination on the basis of race, color, religion, sex, military status, national origin, disability, age, or ancestry. R.C. 4113.71(B)(2).
The exact legal protections for employers will vary from state-to-state, but many states provide some kind of immunity to employers responding to reference checks. This is why it is important to work closely with legal counsel to create policies and procedures for responding to reference checks that limit any potential liability.
Employee Records
Employers should retain employment records of former employees for various purposes. Former employees may request them for their personal use, or they may be helpful in responding to reference checks. As discussed above regarding reference checks, employers should obtain their employees' authorization prior to sharing employment records outside the organization.
Ohio regulations require that employers maintain permanent employment and payroll records including, but not limited to, the following information: names and addresses; social security numbers; job description; amount of wages paid and the date of each payment; date of hiring, rehiring, and termination; and the reason for termination. Ohio Adm.Code 4141-23-01. These records must be maintained for a minimum of five (5) years. Ohio Adm.Code 4141-23-02.
Each state's records retention laws will vary, so it is important for employers to work with legal counsel to determine what records they are required to maintain. Keeping accurate and complete employment and payroll records is necessary not only for auditing purposes, but also for defending against employment-related lawsuits.
Conclusion
With any amount of employee turnover, employers are bound to encounter many different types of post-employment interactions. Throughout this Blog Series on Combatting the Risks of Departing Employees, two central themes have emerged: (1) have clear policies and procedures and (2) document everything completely and accurately. Employers who follow these guidelines will have an easier time navigating post-employment interactions.
