We’ve had several of our friends in the dental community inquire about how to best release an employee. We asked our friend (and employment lawyer) Nicole Windsor from Bowie and Jensen law firm to write this guest blog for us.
Handling employee departures like a pro takes practice, but the difference to your company can be significant.
Each employee departure is unique and provides an opportunity to learn about your organization’s strengths and weakness. This is especially true in the case of resignations.
As such, requiring all departing employees participate in an exit interview is a good investment of time. During an exit interview, an employee can be questioned about the reasons for the departure, including problems in the workplace such as lack of innovation, poor opportunity for advancement as well as perceived discrimination, harassment, bullying or other inappropriate conduct.
Collecting this information allows an employer to assess the risk of potential employment litigation involving the departing employee and others. If an employer learns that a departing employee is considering filing a legal complaint, the employer should address the employee’s concerns immediately, to the extent possible. Prompt action may help avoid litigation or help protect against liability if a complaint is filed.
Exit interviews are also an excellent time to remind employees of any post-employment covenant obligations such as confidentiality, non-competition, non-solicitation of customers and no raiding of company employees. These interviews also provide an opportunity to discover risks relating to confidential and trade secret information. This can be done by asking about the employee’s future plans. If the employee is joining a competitor, an assessment can be made about the likelihood the employee will violate any applicable non-compete or non-solicitation agreements, or misappropriate confidential and trade secret information.
Based on the information collected (and taking into consideration the company’s treatment past employees) consider whether a severance agreement and release is appropriate. Employers buy a measure of certainty when they secure a full release in exchange for the payment of severance or other benefits to which an employee is not otherwise entitled. While employees cannot release their right to file an Equal Employment Opportunity Commission complaint, they can release their right to any individualized relief. This means, among other things, they cannot seek money damages for any released claim. Releases generally cover anything relating to the employee’s employment or termination from employment.
Finally, exit interviews provide an opportunity to manage the employee’s expectations. A smooth transition is more likely when employees have basic information such as the date to expect a final paycheck, and the status of any bonus, commission or incentive pay. Employers should also notify employees as to any payment for accrued and unused paid time off. Finally employers should notify employees when their benefits coverage will terminate and whether they are eligible for COBRA and when to expect to receive a COBRA notice.