Employers should (but often don’t) conduct an exit interview every time an employee leaves – regardless of whether the employee has resigned voluntarily or been terminated involuntarily. The exit interview can be beneficial for employer and employee alike, as is discussed below.
Here is a list of what should occur at an exit interview, with an explanation of the benefit to be gained by both employer and employee from taking the recommended action.
1.The employer should collect keys, passwords, computers, company phones, and any other company property that the employee may have. If the employee has company property at home or in his or her car, arrangements should be made for the employee to return it as soon as possible. A list of returned property should be signed by both employer and employee, so that there is no misunderstanding as to what has been returned. The employee may be asked to confirm under oath that all company property has been returned.
Why is this important?
For employees, documenting what has been returned and having the employer confirm that the list is accurate reduces the risk that the employer will later accuse the employee of retaining company property. For employers, requiring the employee to confirm under oath that all company property has been returned not only encourages candor but also gives the employer a basis to seek a remedy later if it is determined that the employee has indeed retained company property.
2. There needs to be a discussion of any restrictive covenants that may be in place, including covenants not to compete with the employer, covenants not to solicit customers, covenants not to encourage other employees to leave, and confidentiality agreements. Both employer and employee need to understand what activities are and are not prohibited.
Why is this important?
A discussion of restrictive covenants at the exit interview serves as a reminder to the employee of obligations to which the employee may have agreed at the commencement of the employment. Employees don’t often carefully review employment agreements when they sign at the beginning of employment, and it sometimes comes as a surprise when an employee is notified that he or she is bound by covenants at the termination of the employment. Employers benefit from making sure employees are aware of their obligations before they start working for a new employer. And employees benefit from having an opportunity to review those obligations and, if necessary, seek the advice of counsel, before taking action that may run afoul of the restrictions.
3.The employee should be instructed not to delete or copy any information located on company computers or in the company’s paper files without management authorization. (If there is concern that the employee will do this, the company may wish to have an administrator image the hard disk and cancel passwords before the exit interview occurs. When considering this option, the employer needs to balance the potential risk from not taking these precautions against the risk of losing goodwill with the employee. The benefit of preserving goodwill is discussed further in the final paragraph below.)
Why is this important?
A reminder to the employee not to delete or copy information stored on company computers or in the company’s paper files will serve to reinforce any confidentiality obligations the employee may have before the employee runs afoul of those obligations and discloses the employer’s confidential information.
4.The employee must be paid all earned salary or wages, because the employee is entitled to a timely and accurate final paycheck. The employer benefits from compliance, particularly in states where the law requires delivery of the final paycheck on the last day of employment.
5.The employee must be given any departure paperwork required by state or local law, because the employee is entitled to receive any paperwork that he or she must file with state or local agencies and the employer benefits from compliance with its legal obligations.
6.Finally, and most importantly, there needs to be a discussion of why the employee is leaving and how the employee believes the workplace can be improved.
Why is it important to find out how the employee believes the workplace can be improved? So that the employer can find out what went wrong and what can be improved.
This exit conversation can be difficult, especially when emotions are running high. But it is essential. The terminated employee deserves an accurate, fair, non-inflammatory explanation of the reasons the employment did not work out, regardless of whether those reasons are performance, company finances, or something else. The employee can only improve his or her performance in the future if he or she knows what went wrong.
Likewise, management needs to understand the reasons this or other employees with whom this employee may have spoken are dissatisfied. If the employer is allowing the work environment to become hostile, it needs to know that so that it can take corrective action. If management’s attitude and/or actions are squelching dissent or creativity, the company needs to know that. If employees do not feel that they are treated with respect, the company needs to know that. There could be all sorts of reasons the employee is dissatisfied, and odds are that other current employees share at least some of this employee’s sentiments. The only way to discover and address the sources of dissatisfaction is to have a candid, non-inflammatory discussion at an exit interview, when the employee has little to lose and is less likely than a current employee to dodge issues or sugarcoat answers.
Most importantly for employers, an exit interview that is handled thoughtfully and diplomatically can head off later claims. By way of example, employers, ask yourself: If a resigning employee alleges sexual harassment, is the employee more or less likely to seek recourse at the EEOC if the manager handling the exit interview listens carefully, acknowledges that the allegations have been made during the interview, and asks for advice on corrective action? If a resigning employee alleges sexual harassment and is offered no opportunity to vent during the exit interview, will he or she decide to vent to the EEOC instead? Give the employee a respectful opportunity to explain his or her reasons for dissatisfaction in the privacy of a manager’s office, and maybe the employee will opt not to pay a visit to the EEOC, file a claim in court, or contact the press. Employers, if you’re still not convinced, consider the lawsuit that was recently filed against Paula Deen. Would the plaintiff have been more or less likely to file the lawsuit if she had felt that someone at the company was listening to her and taking her complaints seriously?
Counsel should always be consulted for advice regarding a specific situation. The analysis set forth in this article is provided for general understanding only and should not be considered legal advice.
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