What to consider before, during, and after terminations? HMB Labor & Employment attorney, Gina Cadogan, featured in Hotel News Now

What to consider before, during, and after terminations? HMB Labor & Employment attorney, Gina Cadogan, featured in Hotel News Now

Maintaining safety
Every company needs a workplace violence policy, said Gina Cadogan, an attorney at Hamilton, Miller & Birthisel, and it should be given to every employee, not just supervisors. A zero-tolerance approach should apply to everyone, she said, without special treatment for any employee, including a CEO. Any claims of workplace violence or bullying should be investigated immediately, she said, and supervisors should receive training on how to handle receiving complaints from their employees.

Any violations of the workplace violence policy should be documented in the offending employee’s files along with following through with the proper disciplinary action, she said.

If a situation requires an employee be terminated but hasn’t been otherwise on the radar, Cadogan said, terminate the employee with dignity.

“I’ve had situations where employees who were terminated and just marched out to their embarrassment,” she said. “That’s not with dignity. That could turn into a bad situation.”

If the employee being terminated has a history of workplace violence issues, the company can put things in place to prevent further problems, she said. Talk to a crisis-management team on how to address the termination before it happens, she said.

Think about the environment where the employee will be terminated, she said, such as on-site or off-site through a phone call or a letter.

After the employee is terminated, revoke any security access he or she had, Cadogan said. Let the other employees know so they know not to hold the door open for the former employee, and tell them to let their supervisors know if the fired employee is following them, she said.

To prepare for the worst-case scenario, she said, it’s important to have an active violence plan. The current advice is to have employees run and hide and, if it comes to it, fight.

Other legal matters
It’s become normal for companies to provide a neutral job reference for former employees, Cadogan said, but that can sometimes open them up to liability if that former employee has a history of workplace violence.

She cited a situation in which a Florida man received a neutral job reference from a former employer when applying for a job at another insurance company and, after being fired from his new job, shot and killed several of his former coworkers from the second job. The wives of those killed and an injured coworker then sued the first company, arguing it knew of his strange behavior and potential for violence and did not disclose it to their employer.

Florida is a state that protects companies from defamation if they provide truthful information about a former employee. While state laws vary, the truth is the ultimate defense against defamation, she said. This is why it’s important to have a workplace violence policy and it’s important to document every situation properly, she said.

“It’s more important to help protect lives than worry about a lawsuit that is baseless,” she said.

Require reference checks in writing, Conine said, and don’t provide anything over the phone because sometimes people like to impersonate companies to find out what the reference would be and can get upset if they hear something they don’t like. Verify all written requests, he said.

“As I’ve said many times over the years, the best money you’ll ever spend is making one phone call to your attorney,” he said regarding writing references. “They will have the most current information, not only about what happens in your state or as a multistate operator, but they’re also able to say in the real world, these kinds of comments are challenged more by employees.”

If the employee has a confidentiality, noncompete agreement or nonsolicitation agreement, Cadogan said the employee should be reminded about the restrictive covenants.

“The employer could either provide the restrictive covenant to the employee during the termination or tell the employee about the restrictive covenants and then prepare a memo to file documenting the date and time of the notification,” she said. “If the termination will be by letter, the agreement should be provided as an attachment to the letter.”

A terminated employee will likely want to know why, Cadogan said. Generally speaking, she said, employers don’t have to give a reason for termination, but it depends on the situation with the employee. In some states, the employer needs to get legal advice before answering such a question, she said.

Some situations are simple to explain, Conine said, such as the employee is being laid off because the company doesn’t need as many employees in that department. Other situations, such as that employee is making his or her colleagues feel uncomfortable, aren’t as easy to explain. In those types of situations, he said, that’s why it’s important to have already provided warnings and counseling as well as documenting any incidents.

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