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

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Practical and entertaining education for
attorneys, accountants, business owners
and executives, and investors.
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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
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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
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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.
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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.
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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
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Dates shown are premiere dates.
All webinars will be available
On Demand approximately 4 weeks
after they premiere.

Episode #6:
It’s So Hard To Say Goodbye:
Minimizing Risk When Terminating
Employees
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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?
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EMPLOYMENT AT-WILL… WITH A
TWIST
a. State and federal anti-discrimination laws
b. Wrongful discharge based on public policy violations
c. Retaliation
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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
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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
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THE ROAD TO TERMINATION
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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?
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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?
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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
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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!
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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
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ADDITIONAL CONSIDERATIONS
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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?
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POSSIBLE SEPARATION BENEFITS
a. Traditional severance
b. Health insurance costs
c. Allow to keep cellphone or other electronics
d. Outplacement services
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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
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THE TERMINATION MEETING
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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
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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
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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
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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
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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
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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
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THE BOTTOM LINE
Always remember that:
a. Published policies
b. Consistency
c. Adequate documentation
d. Preparation
Can be key to limiting or avoiding liability!
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ABOUT THE FACULTY
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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.
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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.
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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
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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.
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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.
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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.
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