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It’s So Hard To Say Goodbye: Minimizing Risk When Terminating Employees 2019

Webinar Series: HR, TALENT MANAGEMENT & EMPLOYMENT LAW BOOT CAMP 2019

Involuntary terminations are never pleasant, but they are an inevitable part of business. Whether an employee is being let go due to poor performance or serious misconduct, chances are that he or she may take issue with the company’s decision—either during the termination meeting or at some point down the road. In the event the terminated employee decides to visit the nearest Equal Employment Opportunity Commission Office or meet with a plaintiff’s attorney, you want to make sure that you have taken steps to minimize risk and give your organization its best chance to defend against claims of discrimination, retaliation and/or wrongful discharge. This webinar discusses the various issues you should consider not only when you are making the decision to terminate but also in the weeks and months that lead up to that point. Drawing on their experiences as an HR consultant and management-side employment lawyer, the panelists provide practical tips to minimize exposure and best practices for conducting an employee termination meeting.

View On Demand Webinar: https://www.financialpoise.com/financial-poise-webinars/minimizing-risk-terminating-employees-2019/

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It’s So Hard To Say Goodbye: Minimizing Risk When Terminating Employees 2019

  1. 1. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe Insert the cover image for this webinar on this slide entirely 1
  2. 2. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe Practical and entertaining education for attorneys, accountants, business owners and executives, and investors. 2
  3. 3. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe DISCLAIMER The material in this webinar is for informational purposes only. It should not be considered legal, financial or other professional advice. You should consult with an attorney or other appropriate professional to determine what may be best for your individual needs. While Financial Poise™ takes reasonable steps to ensure the information it publishes is accurate, Financial Poise™ makes no guaranty in this regard. About this PowerPoint: if you are looking at this PowerPoint without the benefit of listening to the conversation that surrounded it then you are doing yourself a disservice. This PowerPoint was prepared in contemplation of being viewed in conjunction with listening to a one hour webinar on the topic 3
  4. 4. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe MEET THE FACULTY Moderator: Charles Krugel – Law Offices of Charles Krugel Panelists: David Wayne – Saul Ewing Arnstein & Lehr Emily Fess – Rush University Medical Center David Michael – Gould & Ratner Jason Klimpl – Tannenbaum Helpern Syracuse & Hirschtritt LLP 4
  5. 5. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe ABOUT THIS WEBINAR: It’s So Hard To Say Goodbye: Minimizing Risk When Terminating Employees Involuntary terminations are never pleasant, but they are an inevitable part of business. Whether an employee is being let go due to poor performance or serious misconduct, chances are that he or she may take issue with the company’s decision—either during the termination meeting or at some point down the road. In the event the terminated employee decides to visit the nearest Equal Employment Opportunity Commission Office or meet with a plaintiff’s attorney, you want to make sure that you have taken steps to minimize risk and give your organization its best chance to defend against claims of discrimination, retaliation and/or wrongful discharge. This webinar discusses the various issues you should consider not only when you are making the decision to terminate but also in the weeks and months that lead up to that point. Drawing on their experiences as an HR consultant and management-side employment lawyer, the panelists provide practical tips to minimize exposure and best practices for conducting an employee termination meeting. 5
  6. 6. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe ABOUT THIS SERIES: HR, Talent Management, Employment Law Boot Camp If you have employees or advise companies with employees, this webinar series is for you! No employer—whether large, medium or small—is immune from the reach of federal, state and/or local employment laws and regulations. Now, more than ever, employers should consider taking a proactive approach to auditing their employment practices and policies so that they can better respond when issues arise. This webinar series approaches the employer-employee relationship from beginning to end, with programs covering the most important steps along the way, including hiring and onboarding, policy and procedure development and training, wage and hour compliance, accommodating disabled employees, conducting investigations and considerations associated with ending the relationship. 6
  7. 7. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe EPISODES IN THIS SERIES 4/3/19 Episode #1: Welcome to the Team! Recruiting and Hiring, Including Restrictive Covenants 5/8/19 Episode #2: An Ounce of Prevention: Policies, Procedures and Proactivity 6/5/19 Episode #3: Show Them the Money: Wage & Hour Compliance 7/10/19 Episode #4: Time for a Break: Managing Leaves of Absence and Accommodating Disabilities 8/7/19 Episode #5: Know What You Did Last Summer: Workplace Investigations 9/4/19 Episode #6: It’s So Hard To Say Goodbye: Minimizing Risk When Terminating Employees 7 Dates shown are premiere dates. All webinars will be available On Demand approximately 4 weeks after they premiere.
  8. 8. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe Episode #6: It’s So Hard To Say Goodbye: Minimizing Risk When Terminating Employees 8
  9. 9. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe AT-WILL EMPLOYMENT a. It’s the law in most of the U.S. b. Allows for termination for any lawful reason (good or bad) or no reason at all, at any time c. So why does it seem like you can’t fire someone at any time, for any or no reason, and without prior notice? 9
  10. 10. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe EMPLOYMENT AT-WILL… WITH A TWIST a. State and federal anti-discrimination laws b. Wrongful discharge based on public policy violations c. Retaliation 1 0
  11. 11. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe LAWFUL CONSIDERATIONS Make employment decisions based on legitimate business reasons, such as: a. Performance b. Insubordination c. Misconduct d. Violation of policies e. Reduction in force 1 1
  12. 12. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe UNLAWFUL CONSIDERATIONS Do not consider ―protected classes‖ when making employment decisions: a. Sex b. Race c. Color d. Religion e. Age f. Disability g. National Origin h. Military or Veteran status i. Sexual Orientation j. Other protected classes 1 2
  13. 13. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe THE ROAD TO TERMINATION 1 3
  14. 14. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe PRE-TERMINATION CHECKLIST Key considerations: a. What are the issues that brought the company to this decision? b. What’s in the employee’s personnel file? c. How has the company handled similar situations? 1 4
  15. 15. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe WHAT ARE THE ISSUES THAT BROUGHT THE COMPANY TO THIS DECISION? If rule violation or performance expectations not met: a. Employee’s awareness of rule or standard b. Was the employee informed that termination would occur if things did not improve? c. Is the rule or expectation reasonable? 1 5
  16. 16. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe WHAT’S IN THE EMPLOYEE’S PERSONAL FILE? Timely and adequate documentation a. Employee’s behavior :  Objective examples of employee’s conduct  Impact on business  Witness statements 1 6
  17. 17. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe WHAT’S IN THE EMPLOYEE’S PERSONAL FILE? (CON’T) Employee’s past work and disciplinary record a. Isolated incident? b. Prior coaching, agreed upon goals, and follow-up action if goals not met? c. Any prior progressive discipline? Remember: In litigation, documented action communicated to the employee is the most persuasive evidence! 1 7
  18. 18. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe HOW HAS THE COMPANY HANDLED SIMILAR SITUATIONS? Consistency a. Were all employees who engaged in similar conduct terminated? If not, why not? b. Has the Company documented similar conduct by other employees? Watch out for: a. Discrepancies 1 8
  19. 19. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe ADDITIONAL CONSIDERATIONS 1 9
  20. 20. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe TO GIVE OR NOT TO GIVE… SEVERANCE? Consider: a. What is the likelihood the employee will sue? b. What did the company do in prior similar circumstances? c. Can the company withstand defending a suit? 2 0
  21. 21. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe POSSIBLE SEPARATION BENEFITS a. Traditional severance b. Health insurance costs c. Allow to keep cellphone or other electronics d. Outplacement services 2 1
  22. 22. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe SEVERANCE AGREEMENT AND RELEASE If severance or other benefits are provided, get waiver and full release of claims! Considerations- a. OWBPA/ADEA compliance b. Non-disclosure/non-disparagement c. No reapplication d. Right to file EEO charges 2 2
  23. 23. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe THE TERMINATION MEETING 2 3
  24. 24. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe EFFECTIVELY COMMUNICATE THE TERMINATION DECISION Hold a termination meeting a. Have two company representatives present b. Decide what each person says c. One person takes notes 2 4
  25. 25. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe EFFECTIVELY COMMUNICATE THE TERMINATION DECISION (CON’T) Carefully select time and place for the meeting - a. Be considerate b. Private place for communication c. Best day/time for termination 2 5
  26. 26. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe EFFECTIVELY COMMUNICATE THE TERMINATION DECISION (CON’T) Tell the employee the real reason for the termination a. No sugarcoating b. Can we call it ―position elimination‖? c. Avoid inflammatory language Be compassionate, but not apologetic 2 6
  27. 27. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe EFFECTIVELY COMMUNICATE THE TERMINATION DECISION (CON’T) Do not: a. Drag out the termination announcement b. Argue or negotiate with the employee c. Joke d. Talk too much e. Compliment to justify the decision f. Discuss other employees or your transition plan 2 7
  28. 28. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe EFFECTIVELY COMMUNICATE THE TERMINATION DECISION (CON’T) a. Allow the employee an opportunity to respond b. Answer reasonable questions c. Be prepared to address various logistical matters  final paycheck  return of company property  benefits  obtain passwords/security codes  remind of ongoing restrictions  cut computer/phone access during the meeting d. Offer to help pack personal belongings e. Carefully document what is said 2 8
  29. 29. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe NOW WHAT? a. Inform remaining employees on a need-to-know basis b. Neutral references c. Gather all files, notes and documentation in one secure location 2 9
  30. 30. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe THE BOTTOM LINE Always remember that: a. Published policies b. Consistency c. Adequate documentation d. Preparation Can be key to limiting or avoiding liability! 3 0
  31. 31. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe ABOUT THE FACULTY 3 1
  32. 32. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe Charles Krugel – cak1@charlesakrugel.com As a management side labor & employment attorney & human resources (HR) counselor, Charles Krugel, www.charlesakrugel.com, has 24 years of experience in the field & has been running his own practice for 18 years. His clients are small to medium sized companies in a variety of industries. Charles has been lead negotiator for hundreds of labor & employment agreements & contracts. Additionally, he’s litigated dozens of court cases, administrative proceedings & arbitrations. In addition to providing traditional labor & employment law services, he represents companies desiring to institute preventive & proactive HR functions. These functions include policies & procedures, which help to efficiently & discreetly resolve issues in-house & prevent lawsuits & complaints; they also help to reduce costs & act as catalysts for increasing productivity & profits. Moreover, he’s frequently the subject labor & employment law related TV, radio & print interviews. 3 2
  33. 33. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe Emily Fess – Emily_fess@rush.edu Emily C. Fess is the Senior Associate General Counsel – Employment for the Rush University System for Health. Emily counsels RUSH on a broad range of employment law matters, including medical leave and accommodation requests, discipline and discharge, harassment and workplace investigations and wage and hour issues. Emily routinely manages litigation that includes discrimination charges filed with the EEOC and state agencies and various Title VII, ADA, FMLA, FLSA and retaliation lawsuits. 3 3
  34. 34. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe Jason Klimpl – klimpl@thsh.com Jason B. Klimpl is a partner in the Employment Law Group of Tannenbaum Helpern Syracuse & Hirschtritt LLP. In this capacity, he advises clients on a broad range of employment law matters, such as wage and hour compliance; healthcare; equal opportunity actions and policies; employment agreements and restrictive covenants; independent contractor and consulting issues, reductions in force; technology and privacy concerns; and other human resources counseling. Jason is also the Associate General Counsel of the New York Staffing Association, and is heavily involved in legal and legislative efforts to support the staffing industry. Jason has written numerous employment law articles and is a contributing faculty member of both Lawline and the National Academy of Continuing Legal Education. Jason is also a member of the Manhattan Chamber of Commerce’s Speakers Bureau and Help Desk. -Awarded Martindale‐Hubbell ―Preeminent‖ peer review rating. -Named 2013 ‐2017 New York Super Lawyer (Rising Star). -Finally, the New York Enterprise Report named Jason the winner of the 2012 Best Attorneys and Accountants ―Rising Star Attorney‖ category. Follow Jason on Twitter: @HR_Attorney 3 4
  35. 35. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe DAVID WAYNE – david.wayne@saul.com David is a Partner in the Litigation and Labor and Employment groups in the Chicago office of Saul Ewing Arnstein & Lehr LLP. David represents companies in employment related disputes on issues including wage and hour disputes, employee classification under the FLSA, wrongful termination and claims of discrimination under Title VII, ADA, ADEA and other federal, state and local laws. David’s breadth of experience as a litigator has also enabled him to hone his skills as a trusted advisor and outside general counsel to successful entrepreneurs and business owners. In addition to assisting with dispute resolution (both pre-litigation and once in court), David also provides his clients with an array of services including drafting and negotiating employment and independent contractor agreements, counseling regarding hiring/firing and employee discipline, and preparation and revision of company policies and manuals. 3 5
  36. 36. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe David Michael – DMichael@gouldratner.com David Michael is a partner at Gould & Ratner LLP where he serves as the Chair of the firm’s Human Resources and Employment Law Practice. David draws upon an extensive 28-year background in human resources management and counseling and limits his practice to management-side human resources, employment and labor law. David helps employers solve their complex employee problems, the issues that often leave companies wondering, what should we do? He works closely with employers by providing proactive advice on a wide variety of employment-related topics, representing employers in employment-related litigation and agency charges, and helping employers draft employment and restrictive covenant agreements, compensation and bonus policies and employee handbooks. David has an AV Preeminent rating by Martindale Hubbell and is recognized as both an Illinois Leading Lawyer and Illinois Super Lawyer in the area of Employment Law: Management. 3 6
  37. 37. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe QUESTIONS OR COMMENTS? If you have any questions about this webinar that you did not get to ask during the live premiere, or if you are watching this webinar On Demand, please do not hesitate to email us at info@financialpoise.com with any questions or comments you may have. Please include the name of the webinar in your email and we will do our best to provide a timely response. IMPORTANT NOTE: The material in this presentation is for general educational purposes only. It has been prepared primarily for attorneys and accountants for use in the pursuit of their continuing legal education and continuing professional education. 3 7
  38. 38. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe ABOUT FINANCIAL POISE DailyDAC LLC, d/b/a Financial Poise™ provides continuing education to attorneys, accountants, business owners and executives, and investors. Its websites, webinars, and books provide Plain English, entertaining, explanations about legal, financial, and other subjects of interest to these audiences. Visit us at www.financialpoise.com. 3 8 Our free weekly newsletter, Financial Poise Weekly, educates readers about business, business law, finance, and investing. To receive it simply add yourself by going to: https://www.financialpoise.com/newsletter/ Email addresses are never sold to or shared with third parties.

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