From an employer’s perspective the firing of an employee is hopefully the culmination of a deliberative process and compliance with the company’s policies and procedures. It is the ultimate adverse employment action and everything that is said and done may be put under the microscope by an employee’s lawyer, EEOC, or Texas Commission on Human Rights. So what should the employer be thinking about before someone from HR sits down with the employee:
- Has the company complied with all policies and procedures with respect to the termination? This could range from required warnings, write-ups, performance improvement plans etc.
- Have you considered what claims the employee may assert against the company? Has the risk been evaluated with respect to those potential claims?
- If the company suspects potential litigation how does the employment file look? We all know that Texas is an at-will state (the employer may fire for no reason at all as long as there is no discriminatory basis) but some basis may need to be articulated?
- Are there any post-employment covenants (non-competes/non-solicits/anti-raid provisions) that the employee needs to be reminded of or may need to be enforced in the future?
- Are there other contractual obligations the company may have to the employee? Usually this is compensation related like stock options/retention bonuses etc.
- Is the company going to articulate a basis for the firing to the employee? Best practice here is to actually walk through the mechanics of the let-go and dialogue with the employee.
- Pay the employee everything they are owed. Enough said there.
- Last day logistics – cut off access to email and company documents, orchestrate the return of all company property, and conduct any necessary exit interviews. If it is going to be an ugly departure prepare accordingly.
- Is the company offering severance? Is the company going to let the employee continue to work for the company while they look for new employment or provide notice on when the termination will take place? What day of the week will the termination take place?
- Will the company require a release in exchange for severance?
These are just a few items to consider.
