Exit Interviews for Terminated Employees

Exit interviews at which employees are advised that their employment is being terminated are typically handled by experienced (hopefully) personnel in the HR department.  In most cases, the legal department is involved only to provide advice on any legal issues associated with the termination decision (e.g., making sure that the grounds for termination does not run afoul of federal or state discrimination laws or that the facts support a conclusion that the employee has breached an agreement with the company arising out of the employment relationship).  However, the general counsel or another attorney in the legal department responsible for employment matters should be sure that HR personnel understand and follow a few basic rules when they actually sit down to tell an employee that he or she has been fired.

First of all, whenever possible the employee should be warned and counseled before things get to the point where a termination meeting is held.  Problem employees should be given clear evidence of their performance problems, clear objectives that need to be satisfied in order for improvement to be recognized, and a limited time frame for improvement.  This is not only fair to the employee it also reduces the risk that the company will find itself involved in a lawsuit asserting wrongful termination, retaliation or discrimination.

Second, make sure the HR personnel have a short script or checklist that can be referred to as a guide for making sure all necessary issues are addressed during the meeting.  The HR staffer should know in advance what he or she is going to say and should be accompanied by a back-up to document the meeting and provide a sense of security for the person talking to the terminated employee.  Plans should be made in advance for disabling the employee’s access to his or her computer and other electronic devices while the meeting is going on and the employee should be told that this will occur to avoid any surprises.  Whenever possible, the termination should be done at the close of business on Friday or first thing Monday morning before the employee has started work activities.

Third, during the meeting the HR staffer should stay focused and avoid getting side tracked by small talk or questions that are no longer relevant.  The person conducting the termination should get directly to the point and refuse to answer questions such as “who will take my place” or “how will the Iceberg project get completed.”  Once the employee has been informed of the decision he or she should be told about certain issues that will be relevant during the post-employment period—COBRA coverage, references, and compliance with non-disclosure and non-competition agreements.  This is also the time to collect all company equipment include laptops and cell phones.

Finally, while the HR staffer should be firm and clear when delivering the bad news, an effort should be made to preserve the dignity of the terminated employee.  If the employee becomes angry or upset, acknowledge those feelings and perhaps give the employee a moment alone to recover his or her composure.  However, if it appears that the employee may become violent then it’s time to terminate the meeting and bring in reinforcements to escort the employee from the building as quickly as possible without raising interest among the other employees.  Inform other employees on a “need-to-know” basis that the employee is no longer with the company and make sure that the employee’s duties are immediately absorbed by others.  In fact, quietly plan for the change well in advance so that there is no disruption to the business.

Firing an employee, even though the employee is clearly a poor performer, is never easy and most managers concede that it is one of the toughest things that they have to do.  In fact, many managers allow weak employees to stay on much longer than they should because they want to avoid confronting them with the news that they are no longer part of the company’s future.  If the company has a formal process in place for the termination process it will be better for everyone involved!

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