Terminating Employees and Avoiding Legal Pitfalls

Alan Carlos Blanco, Esq.1

Employment Termination: A Three-Stage Checklist

Most library employees are employed on an at-will basis. Even though this is the case, termination is a risky business. The guidelines below offer a way to lessen risk, looking at employment termination as a three stage process: and preparation prior to the termination; the termination itself, and steps to take after the termination.

I. Evaluation and preparation and prior to the termination.

The most critical part of the termination process occurs before the termination. This is when careful thought is given to how the library as an institution should be protected. How will the work and important relationships be transitioned? Does the library need to take steps to protect confidential information? What legal risks does the termination present? What steps should be taken to mitigate risks? How is the termination meeting to be handled, step by step, considering who will be present, when and where termination will occur, and how it is to be carried out.

A. Protection of the library as an institution: Plan for a transition of the work which is as seamless as possible.

• Have a plan for who is picking up the work and how suppliers, internal customers, external customers, or patrons will be serviced. • Is there an internal candidate as part of a succession plan? • Should you start recruiting and delay termination until a replacement is ready? • Do you need to introduce suppliers, internal customers, or external customers to a successor before the termination? • Should other persons be teamed with the employee on projects on which the employee is working? • Note: The selection of employees to whom the work may be transitioned has potential legal consequences, and may create the appearance of discrimination on the basis of one or more legally protected categories.

B. Protection of the library as an institution: Plan for how to protect confidential information and important relationships.

• What information does the employee have in his or her possession? o In what form is this information (written, electronic)? o Where is it located?

1 Partner, Rothman Gordon, P.C. 310 Grant Street, Pittsburgh, PA 15219

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• What information is the employee in a position to access, if the answer is broader than the answer to the bullet point immediately above? o In what form is this information (written, electronic)? o Where is it located? o Should steps be taken to monitor access or limit access? • Evaluate the employee’s relationships with important suppliers and external and internal customers. o Should steps be taken to reduce potential harm to relationships? C. Evaluate the termination for potential legal risk.

• Why is the employee being terminated? What is the termination rationale (i.e. reason for termination)? • Who are the decision makers regarding the termination? To what extent do they have personal familiarity with the facts giving rise to the reason for termination, and to what extent are they depending on others to provide those facts? • Articulate the termination rationale, and evaluate it as if you are explaining to a neutral party (e.g. arbitrator, judge, or jury) why the person was fired. o Does the termination rationale hold water and sound fair, solid and reasonable? While terminations don’t have to be fair in order not to be illegal, a good starting point for whether the termination may present danger to the library is to start with whether the reason for termination, in light of all the surrounding circumstances, looks fair, solid and reasonable. All the surrounding circumstances include but are not limited to: . The employee’s length of service with the library; . The employee’s documented performance or disciplinary history (both positive and negative); . What is in the employee’s official personnel file? What is in informal supervisory files? Are there other communications such as emails, texts, etc.? (see below) . Will the termination come as a surprise to the employee (see bullet about the “no surprise rule” below); . Business circumstances and their relevance if any to the termination decision; . How the employee is being treated in relation to other employees; . Has there been a recent change of supervision that resulted in how the employee is perceived as performing (such that deeper questions should be asked). o Is the reason for termination honest and does it square with the facts? o How is the library going to prove the facts (see bullet points above) if it is required to offer proof of the reason for termination? . Is there existing supportive documentation for the reason for termination, or does the documentation look inconsistent with the reason for termination? (See bullet point below). . Does proof depend on employee testimony? If so, what steps if any should be taken to preserve recollections in case the library needs to prove its reasons months or

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years later? Have you objectively assessed the credibility of those you will rely upon to testify? o Does the reason for termination square with the library’s documentation? How about performance reviews, merit increases, notes about what a great the employee is doing, etc.? With some frequency, one finds that the employee whose performance is being reported as terrible has gotten at least average (sometimes good) performance reviews, and has received merit raises. • Are there factors that make the termination look particularly insensitive, shocking, or malicious? For example, is the employee being fired right before a holiday or after a spouse was hospitalized or a parent died? • Does the termination pass the No Surprise Rule? The No Surprise Rule is not a legal rule. At-will employees are just that. The No Surprise Rule is a common sense test that helps an administrator steer clear of legal problems when terminating an employee by setting a higher bar than the law does. As a general matter, a termination should never be a surprise to a terminated employee. It should be based on good, honest business reasons and should either follow warnings and attempts at correction with appropriate documentation, or it should follow conduct that is so egregious that the employee should know that the conduct would normally result in termination. This is an application of the principles of progressive and corrective discipline that are commonplace in unionized workplaces. • Review all applicable contracts, policies, benefit plans, etc. o Make sure all contractual requirements are followed. o Are applicable HR policies, policies, etc. being followed? o Is the employee receiving everything that should come to the employee under all applicable benefit plans, and is the employee receiving all compensation that he or she should receive? • Evaluate legal risk in the termination of the employee in question. o Can the employee claim the termination breaches an agreement or implied contract? Evaluate these potential claims, if any. o Does it look as if the employee might claim that the firing is because of the employee being in a category protected by the discrimination laws? . Note that everyone falls into some of the categories protected under the discrimination laws. . Consider how discrimination is proved in legal proceedings, either through direct evidence or indirect (circumstantial) evidence. o Does the termination follow after the employee engaged in some kind of legally protected activity, such as going on FMLA leave or asking for reasonable accommodation for a disability, or filing a workers’ compensation claim? o Does the termination follow a complaint by the employee that may have legal protection, such as the employee having reported discrimination or harassment, or the employee having made a complaint? o Evaluate the risk of claims of illegal retaliation.

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o Evaluate any collateral legal claims. For example, the termination might be perfectly legal but the employee may have a valid and hour claim because he or she was misclassified as exempt and frequently worked over 40 hours per week. • Consult with legal counsel. • Check your work (the way your math teachers used to tell you to do it). Ask yourself, if you were a lawyer for the employee trying to make the termination rationale sound fake, how could you attack it? Look for any indication that suggests that the library’s stated reason is not the real reason for the termination and that the library is covering up another, illegal, reason. Look also at potential collateral claims.

D. Risk mitigation

• If feasible, review the potential termination with legal counsel in advance or get quality HR professional advice. Prevention of legal disputes is better and much less costly than dealing with them after the fact. • In addition to carefully evaluating legal exposure (see above), consider whether the library should offer severance tied to signing a release of claims, possibly with other terms to protect the library. • Is the termination too risky? Should the plan be abandoned? • Long term, should the library purchase Employment Practices Liability Insurance (EPLI)? • Plan any other steps needed to secure property, confidential information and data, key relationships, and physical security (see below).

E. Planning the termination meeting: Who, When, Where.

• The termination should be as confidential and dignified as you can make it, subject to other library needs like making sure there is adequate physical as well as property and data security. o Evaluate the library’s needs, and plan the time, place and manner accordingly. o How and when can it be done without unnecessary embarrassment to the employee? Avoid a “walk of shame” in front of other employees. o How much physical security is appropriate? Is there a foreseeable risk of violence or little or no risk of violence? Take appropriates steps, depending on the evaluated level of risk. . Not every termination is the same; consider whatever information you know about the individual including access to firearms or other weapons, any history of disruptive behavior or “outbursts” in the workplace. . In some cases, extensive preparations for physical security may be necessary, to the extent of consulting and cooperating with local law enforcement prior to, during and after the termination, providing for armed security personnel or plain clothes officers, and surveillance afterwards.

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. At the other end of the spectrum, many terminations present little or no physical security risk. . The employer should take precautions appropriate for the level of evaluated risk, but doubt should always be resolved in favor of workplace safety. . Consider whether an extended period of security following the termination is warranted (several workplace violence incidents have occurred after a terminated employee returns later to the workplace). o Plan to protect employer property and data. As necessary, involve IT personnel or consultants to be ready to cut off access at the time of termination and take any other necessary steps to protect or recover data. o Plan the time, place and manner so as to minimize disruption to other employees. • Decide on where the termination will occur, the day, and the time of day. • Decide who will conduct the termination meeting. o The Library Director or other ? o Should a human resources director be present (for larger libraries)? o Who else should be present, if anyone? • More on who conducts the termination meeting: There can be good reasons for the termination meeting to be one-on-one with the Library Director or other key supervisor and there can be good reasons for there to be another employer representative in the room when the termination happens. o A one-on-one meeting can be less confrontational, more personal, and more dignified (if it stays on track), but documentation is more of a challenge. o Having a second person in the room for the employer allows a witness and allows one person to focus on being the spokesperson while the other focuses on observing and taking notes. o In some cases, for larger libraries, the Library Director/supervisor may deliver the news to the employee that he or she is terminated, then leave, and let HR handle the separation logistics. • Use a conference room, not an office where you could be trapped if the employee refuses to leave.

E. Planning the termination meeting: How.

• In addition to when and where the meeting will occur, and who will be present, be ready with a list of the things to be covered in the meeting. Prepare this list in advance, and in writing. • List what you will cover in the meeting. The list should cover the following items: o An honest, concise reason for the termination. . Note: At-will employees can be terminated for any reason or no reason, so there is no legal requirement that the employee be provided a reason for the termination.

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. Notwithstanding this, HR professionals and lawyers often recommend that the employee be provided a concise and accurate reason for the termination. . The alternative, “we have decided to let you go but we are not going to tell you why” or some variation of that, enhances the likelihood that the employee will consult legal counsel and look for a way to challenge the firing. . Consider whether the reason for termination should be provided verbally or also stated in a termination letter. There is no absolute answer one way or the other, and there can be good reasons to select either approach. This is a case by case judgment, and may depend on evaluation of the employee’s personality and the reasons for termination. . It is extremely important that the reason for termination as stated to the employee be accurate and honest. This is not a time to sugar-coat things. One of the ways employees can prove illegal discriminatory motive or other illegal motive by circumstantial evidence is by showing that the employer offered false reasons for the discharge and/or changed the reason for discharge over time. o Prepare to present to the employee documents such as a termination letter (if one is being provided) and/or a severance agreement (if one is being offered). o Other separation logistics for which to prepare: . Cover other exit benefits such as COBRA (or, for smaller employers, Pennsylvania Mini-COBRA). Explain when the employee will receive notices. . Cover post-employment obligations under any agreements the employee signed (if any) and if applicable, have copies of the agreements. . Cover how the employer handles requests for information from potential future employers. • This is a good reason to have a policy that the employer confirms dates of employment and positions held, and does not release other information about former employees. • Also consider whether other employees need to be told about how to handle communication or requests from the terminated employee— including any requests for references or letters of recommendation. o Plan to collect keys, passwords, badges, etc., and any other library property the employee actually has in the room. o Plan to address how any other library property will be recovered and when, e.g. laptops, devices, files, etc. Plan to cover data security, i.e. that IT is disabling access, and other steps that should be explained to the employee. o Plan how return of the employee’s personal effects will be handled. o Plan how the meeting will be concluded. II. The termination itself

If proper preparation has preceded the termination, the termination itself should go smoothly. The termination should be a matter of putting into action the prior plan.

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A. Preparation pointers have been covered above. Once everything is in place, conduct the termination meeting. Go into the termination meeting thoroughly prepared. Have the previously prepared list of things to cover at your fingertips, along with all necessary documents. If you need to, rehearse what you will do.

C. At the termination meeting:

• Have the employee come to the conference room at the planned time. Be prepared to handle the meeting solo or with the chosen witness. • As needed, security steps should be in place, and IT should be prepared to act at the same time the employee is in the termination meeting. • Work from the previously prepared concise list of what is to be covered. • Note the following: o The termination meeting is not a counselling session. It is an announcement that the library has made a final and irrevocable decision to terminate the employee. Here are some guidelines for the termination meeting:2 . Get right to the point of the meeting. This is not a time for small talk. Tell the employee that you have bad news and that the decision has been made to terminate him or her. . State the reason for the termination concisely in a couple of sentences. Use the past tense, e.g., “your employment has been terminated” (not “your employment will be terminated”). . An example in Grote, 2017 is: “As you know, Marie, we’ve talked several times about quality problems in your unit. Last month’s report indicated that your department still has the lowest quality index. We have decided that a change must be made, and as of today your employment has been terminated.” . Do not offer phony sympathy. For example, avoid phrases like “I know how you feel” or “this is hard for both of us.” . Don’t argue or justify, or say things like “You should have known this was coming.” . Listen to what the employee has to say. . Pause to allow the employee to react and for you to acknowledge the reaction in a dignified way, without backing off the finality of the decision. . If the employee offers surprising information, you can say the information will be investigated. (Normally, that investigation will occur post-termination). Avoid answering challenges by the employee to the reason you have provided. . Control the meeting. • Move directly to the separation logistics, working from your list.

2 The source of this part of this article is: “A Step-by-Step Guide to Firing Someone” by Dick Grote, Harvard Business Review, February 17, 2016, at https://hbr.org/2016/02/a-step-by-step-guide-to-firing-someone (herein, “Grote, 2017”).

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o Provide any separation paperwork. o Cover all items on the list which was previously prepared. o This includes: . Exit benefits such as COBRA (or, for smaller employers, Pennsylvania Mini-COBRA), including when the employee will receive notices. . Any pay due the employee (e.g. unused vacation, final pay, etc.) and when it will be received. . If applicable (typically not for libraries) cover post-employment obligations under any agreements the employee signed. Give copies of the agreements to the employee. . Review with the employee any library procedures on requests for information from potential future employers. . Collect all library property such as keys, passwords, badges, etc., and any other library property the employee actually has in the room and address how any other library property will be recovered and when, e.g. laptops, devices, files, etc. Some of this can be collected on return to the employee’s office. For some library property, plans may need to be made for quick return after the termination. . Explain that IT is disabling access. If the employee has personal information on library devices, talk to the employee about making plans for that to be addressed with IT. . Conclude the meeting and escort the employee to his or her office to get personal effects, with a plan to get the rest of the effects in a way that is dignified and not disruptive.

III. Steps to take after the termination meeting

After the termination occurs, the employee’s dignity and privacy should be preserved. Control activities and gossip that could lead to collateral legal claims such as defamation claims. Remember that it is in the library’s best interest for the terminated employee to quickly find new employment and move on; requests for reference checks should be promptly addressed.

A. Release a respectful statement, e.g.: “John Doe is no longer with the Library. Any questions regarding his work should go to Sally Smith.”

B. Don’t gossip. Keep the high ground in all conversations. If need be, you can explain that all personnel actions are confidential and not publicly discussed. Control gossip by volunteers and Board members to the maximum extent possible.

C. Don’t destroy records. Don’t go around deleting emails, texts, etc. (These should have been reviewed ahead of time).

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D. Make a prudent decision about whether to fight . Do not lie to unemployment about why the employee was let go.

E. If a demand comes in from the employee or the employee’s lawyer, contact legal counsel immediately and if the library has EPLI, put the carrier on notice.

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