The document discusses the termination phase of an employee's life cycle, emphasizing the importance of proper documentation for various termination reasons such as reduction in force, poor performance, and misconduct. It highlights how thorough documentation can protect employers from claims of discrimination and discusses best practices for conducting termination meetings, including severance considerations and post-termination risk management. Additionally, it touches on alternative dispute resolution methods and stresses the necessity of compliance with company policies to limit claims.

1. Life Cycle of an Employee:
Termination
October 8, 2015

2. Last but Not Least….
Today, we will discuss the conclusion of the
life cycle of an employee—termination.
Whether resignation, RIF, poor performance,
or other reason, employers MUST plan for
employment terminations.
Our employment professionals are here
today to offer practical, proactive advice.

3. Documentation
Previous webinars discussed (among many other
things):
Importance of documentation.
Significance of job descriptions.
Use of performance reviews.
Documentation is the link between all of the other
topics we have discussed in our past webinars and
the actual employee termination.

4. Reasons for Termination
Employees can be separated or terminated from
employment for many reasons:
• reduction in force;
• termination for poor performance;
• termination for misconduct;
• resignation.
In all of these situations, documentation is essential.

5. Reduction in Force
Reasons for RIFs:
– Lack of certain types of work or the elimination of a
product or service.
– General lack of work, new efficiencies, acquisitions
or sales.
Selection of employees:
– Criteria?
– What does documentation tell the employer?
– Who is performing consistently with the job
description?
– Who has the lowest job performance ratings?

6. Termination for Poor Performance
More than any other situation, terminations for
poor performance require thorough
documentation over a period of time.
• How does the employee’s performance match
his/her job description?
• Were there previous warnings?
• Were there previous suspensions?
• Was there progressive discipline and was the
employee notified of prior examples of poor
performance that were documented?

7. Termination for Poor Performance
(continued)
• Is the termination consistent with other situations?
• Were other employees terminated for similar poor
performance under similar circumstances?
• Were other employees allowed to continue to work
when their performance was poor?
Documentation on all of these points is crucial.

8. Termination for Misconduct
Some misconduct is so egregious that it may not
require much prior documentation.
Some types of misconduct may not appear to be
so egregious.
• However, in many situations it may be necessary to
have previous documentation regarding such
conduct.
Unemployment benefit implications.

9. Failure to Document
A terminated employee may argue that the stated reason
for termination was not genuine, but that the termination
was because of a protected classification or activity that
other speakers will review in more detail.
Only thorough documentation will allow an employer to
demonstrate that the motives were non-discriminatory.

10. Resignation
If the employer is pleased, should action have been
taken earlier?
• Supervisors taking easy way out?
• In process of documenting issues?
If the employer is displeased with the resignation,
why did employer lose a good employee?
• Did employee previously communicate
dissatisfaction?
• Beyond employer control?

11. Risk Management
Risk Resolution
• Ensure proper documentation to support termination
in anticipation of a potential claim
• Determine the appropriateness of severance options
(monetary and non-monetary benefits) in exchange
for full release of claims
Employment Agreements
At-Will Employment v. Employer/Employee Risk
Factors

12. Employer Risk Factors
Lack of documentation to support termination
Lack of Company Policy supporting
termination/contrary to Company Policy or
documents
Problematic Company Policies
Inconsistent treatment with other employees
Statements/documents contrary to stated reason
for termination

13. Employee Risk Factors
– Race
– Color
– Gender
– Gender Identity and
Expression
– Sexual Orientation
– National Origin
– Religion
– Age
– Disability
– Pregnancy
– Marital Status
– FMLA Leave
– Genetic Information
– Military Status
Protected Classifications (Generally)

14. Employee Risk Factors (continued)
Discrimination/Harassment Complaint
Whistleblowing
Filed a Workers Compensation claim/on leave
Protected leaves of absence (FMLA, ADA)
Request for Disability Accommodation
NLRA Section 7 Concerted Activity
Filed an NLRB charge
Discrimination Charge filing
Other Claim Demands
Employee’s Recent Protected Activity?

15. Risk Management for Different
Types of Terminations
Reductions in Force (RIF) / Layoffs
• Review Employee Risk Factors for employees
selected for RIF/layoff to identify any unintended
trends
• Confer with managers to determine whether the
stated selection criteria is accurate and applied
even-handedly
• Severance agreement/release – OWBPA Exhibits

16. Risk Management for Different
Types of Terminations (continued)
WARN Act – Risk Management:
• Review Federal WARN Act requirements
• Review applicable State requirements (mini-WARN
Acts)
Employer Coverage thresholds vary
Exceptions vary (including sale of business)
Threshold for affected number of employees vary

17. Termination Meeting Considerations
Attendees on Behalf of Employer / Employee
Day and Time Issues
Location
Security Concerns
Disabling access to facility and information systems
Explanation to remaining employees

18. Termination Meeting Agenda
Who terminates?
Have talking points for employee conducting
termination
• Date of separation
• Reasons for separation [RIF / for cause]
• Importance of truthful reason
• If for performance or conduct, articulate disciplinary
record
• What not to say or do
• Transition to benefit discussion

19. Termination Meeting Agenda (continued)
Explanation of Benefits
• Availability of severance/pay in lieu of notice
• Availability of unemployment compensation
• COBRA and continuing medical coverage
• Other benefits, i.e. PTO payment, retirement, stock
options, expense reimbursement, bonuses, tuition
reimbursement, life insurance, outplacement
services
• Continuing obligations – Confidentiality/Non-
competes/ non-solicitation agreements

20. Termination Meeting Agenda (continued)
Employment references
Retrieval of company property
How and when will employee be allowed to
retrieve personal items?
How will employee exit the facility?

21. Severance and Release Considerations
Should company pay severance?
What is reasonable amount?
Is termination covered by company severance
policy?
Should a severance and release agreement be
entered?
Valid release must be in exchange for consideration
to which employee is not otherwise entitled.

22. Severance and Release Considerations
(continued)
What is employee’s age?
• If 40 or over, 21/45 day consideration period and 7 day
revocation period.
• If under 40, reasonable time to consider.
Is separation being offered to more than one
employee?
OWBPA
Will severance be paid in lump sum or over time?
Importance of IRS Code 409A provision.

23. Severance and Release Considerations
(continued)
Other provisions that must be included in
severance and release agreements
Provisions that should be included
Provisions that typically are included

24. Post-Termination Considerations
Let’s talk about how to protect company property
and manage post-termination claims for those
times when employees aren’t so happy.
• Protection of Intellectual Property
• Alternative Dispute Resolution
• Other Ways to Limit Claims

25. Protecting IP
Executed confidentiality/nondisclosure agreement.
Proactive measures at or before time of
termination to recover property and avoid
sabotage.
Enforcement of those clear, signed agreements.
• Post-termination reminder letter.
• Cease and desist.
• Litigation.

26. Alternative Dispute Resolution
Alternative Dispute Resolution (ADR) is an
alternative to litigation in state and federal courts.
• Mediation
• Arbitration
Benefits
• Parties control the process and select
mediator/arbitrator.
• Can be less expensive and less formal.
• Process can be quicker.

27. Alternative Dispute Resolution
(continued)
Benefits (continued)
• Employers have higher success rate.
• Confidentiality.
• No class actions.
Downsides
• Limited appeal rights.
• Can be as lengthy and expensive as court.

28. Alternative Dispute Resolution
(continued)
ADR policy or provision must be drafted correctly:
• Formation and consideration.
• Fairness.
• Mutuality.
• Class action waivers must be clear and conspicuous –
and watch out for the NLRB!
• Other statutory requirements.
• Other considerations.
• Consult with counsel.

29. Other Limitation of Claims
You have heard a number of ways to limit claims
today, all of which are very important to limiting
claims:
• Compliance with company policies.
• Documented reasons for termination.
• Careful evaluation of layoffs and WARN requirements.
• Severance agreements.
• Careful planning of termination meeting.
• Control of post-termination communications by other employees.
• Handling of unemployment claims.
The key—BE PREPARED!

30. Contact Information
Bradley G. Kafka
– bkafka@polsinelli.com
Elizabeth T. Gross
– egross@polsinelli.com
Lon R. Williams
– lonwilliams@polsinelli.com
Judy Yi
– jyi@polsinelli.com
Polsinelli PC
www.polsinelli.com
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