On February 1, 2022, Tampa Bay Buccaneers quarterback Tom Brady officially announced his retirement via Instagram. The word “officially” is key here, as news of Brady’s retirement initially leaked to the media a few days before, apparently causing Brady, the second-best quarterback of all time, much consternation. Suffice it to say, Brady’s separation from the Bucs did not go smoothly.
Employment relationships routinely come to conclusions. Sometimes, there is a mutual, amicable parting of ways, and sometimes, there isn’t. Regardless, there are certain steps employers can take to ensure hiccups are minimized when employment ends.
When an employee is involuntarily terminated, to avoid potential litigation, an employer should ensure it has a solid basis for its termination decision. While employment is “at will” in many circumstances, meaning it can be ended by either party for a good reason, a bad reason, or no reason at all, the more arbitrary a decision appears to be, the more likely it is to be seen as actually being motivated by some protected category or conduct. With that in mind, an employer should approach any termination decision by following its own policies and procedures. For example, an employer making a termination decision should ask itself whether it complied with its progressive discipline procedure—assuming there is one—when deciding to discharge.
When an employee voluntarily resigns, the employer should strongly consider conducting an exit interview. As noted in one HR Daily Advisor piece:
Exit interviews, as you may have guessed, are conducted after an employee has announced his or her intention to leave the organization. Questions typically focus on trying to understand the reasons for the employee’s departure.
Is the employee leaving for more pay? Are there other concerns the organization has failed to adequately address? The responses to these types of questions can be extremely useful because the information gained can be used to prevent additional employees from leaving.
And with respect to the actual separation of an employee, there are certain specific actions an employer must take. For example, the employee must be provided with his or her final pay. In California, an employee’s last paycheck is due on the person’s last day of employment where the separation is involuntary. Even where someone has resigned, his or her final pay must be provided on the person’s ultimate workday, provided he or she has provided at least 72 hours of notice. Furthermore, the employer may be required to provide certain notices to departing employees, such as the notice of change in relationship that must be given to California employees who are discharged or laid off.
In addition, there are certain other actions an employer should strongly consider taking upon the cessation of an employment relationship, such as ensuring the return of any company property that may have been in the employee’s possession and cutting off the employee’s physical (and electronic) access. For an employee who worked in a role involving access to confidential and proprietary information, it may be prudent to remind him or her of any post-termination obligations concerning that data.
Breaking up may be hard to do at times, but there are actions that can be taken by employers to increase the likelihood that the separation process itself unfolds as smoothly as possible.
Tim Reed is a Partner at FordHarrison.
