This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Reston Town Center that specializes in federal employee, security clearance, retirement, and private sector employee matters. They write biweekly on RestonNow.
Ending an employment relationship can be difficult for both the employee and the employer. Here are some simple tips for employees and employers to consider that can help reduce the risk of the departure causing long-term career damage for the employee or resulting in the employee initiating a claim or lawsuit against a former employer. If employers and employees resolve the termination of the employment relationship amicably, it is less likely that a dispute will arise.
Tips for a departing employee:
1. Be careful about downloading information from an employer’s computer or making backups of company e-mails onto CDs or thumb drives without permission. There have been a number of recent cases where doing so without an employer’s permission can subject an employee to personal civil liability and/or cause the employee to jeopardize his or her security clearance. Get permission from the employer first if company policy is unclear.
2. Be careful about taking or making copies of documents from work when you leave. You may consider them your own work product, but an employer may consider them trade secrets; therefore, it could subject you to civil liability. Again, check with the employer first before taking or copying documents if company policy is unclear.
3. Don’t burn your bridges. Generally, an employee’s most memorable times of employment are his or her first and last weeks with an employer. Likewise, these are the times that an employer remembers most for purposes of future inquiries and references regarding the employee. It is far more prudent to be pleasant and professional when you leave an employer, even if you are terminated and/or the employment relationship has deteriorated. If an employee expresses anger or resentment to an employer, the contention can further cause significant difficulties when the employee attempts to use the former employer as a reference or later attempts to obtain or renew a security clearance. To the extent possible, employees should always leave on professional terms.
4. Do not sign a separation or severance agreement offered by an employer without first speaking with an attorney. Usually, the agreement includes a standard release and possibly non-compete and/or non-solicitation terms. An employee should understand what he or she is signing before agreeing to a release and/or any restrictive covenants. Keep in mind that severance terms can often be negotiated despite an employer’s initial suggestion that the employee “take it or leave it.” Most, if not all, severance terms are usually negotiable.
Tips for an employer dealing with a departing employee:
1. When terminating an employee, do so with dignity and kindness. Not only is this the right way to handle a termination, but it reduces the risk that the employee will file a future employment claim against the employer. Many claims are filed by employees because of the manner in which an employee was treated by the employer during termination. 2. Avoid providing bad references or speaking badly about a former employee, unless necessary or required. Doing so can result in litigation involving whether the employer improperly defamed the employee and lead to other employment claims.
3. Avoid contesting unemployment compensation. Contesting unemployment does not generally provide cost savings for an employer. It is best not to challenge unemployment compensation claims unless there is pending litigation. We find that many employees would not have filed lawsuits against an employer if their unemployment claims had not been challenged by the employer.
4. When a generally well-respected and good employee attempts to negotiate an increase in the severance compensation offered, weigh the pros and cons of refusal carefully and, if possible, try to work with the employee to resolve the severance matter quickly and efficiently. An agreement to increase severance compensation, even slightly, will usually resolve the matter quickly and at substantially less cost to the employer. If an increase in severance compensation is not an option, consider non-monetary incentives to settle severance disputes, such as offering a letter of recommendation.
5. Be careful when withholding or otherwise interfering with an employee’s final paycheck. Improperly withholding an employee’s final paycheck can lead to wage payment litigation that can be very costly for an employer.
6. Keep termination policies consistent for all employees. Treating employees differently when they depart or are terminated from employment can lead to Equal Employment Opportunity (EEO) claims.
These are just some general observations from our experience representing employees and employers over the years when an employment relationship ends. If you need legal advice or representation regarding an employment termination issue, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit us on Facebook at www.facebook.com/BerryBerryPllc.
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