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© 2016 TriNet Group, Inc. All rights reserved. Reproduction or distribution in whole or part without express written permission is prohibited. This proprietary communication has been prepared for educational and information purposes only. The content does not provide legal advice or legal opinions on any specific matters. Transmission of this information is not intended to create, and receipt does not constitute, an attorney-client relationship between TriNet and you. TriNet is not an insurance company, but rather is the single-employer sponsor of all of its health benefit plans. Nothing contained herein constitutes an offer to sell, buy, or procure insurance. The Executive’s Roadmap to Best-in-Class HR Strategy Termination Do’s and Don’ts Shannon Latham & Hema Shinde HR Consultants

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Page 1: Termination Do’s and Don’ts - TriNet · Handling Reduction in Force ... Block computer system access ... TriNet-PPT-Webinar-Termination-Dos-and-Donts Created Date:

© 2016 TriNet Group, Inc. All rights reserved. Reproduction or distribution in whole or part without express written permission is prohibited. This proprietary communication has been prepared for educational and information purposes only. The content does not provide legal advice or legal opinions on any specific matters. Transmission of this information is not intended to create, and receipt does not constitute, an attorney-client relationship between TriNet and you. TriNet is not an insurance company, but rather is the single-employer sponsor of all of its health benefit plans. Nothing contained herein constitutes an offer to sell, buy, or procure insurance.

The Executive’s Roadmap to Best-in-Class HR Strategy

Termination Do’s and Don’ts

Shannon Latham & Hema Shinde HR Consultants

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8/23/2017© 2016 TriNet Group, Inc. All rights reserved. Reproduction or distribution in whole or part without express written permission is prohibited. 2

The Fine Print

This presentation is for educational purposes only. TriNet provides its clients with legally compliant HR guidance and best practices. TriNet does not provide legal, tax, or accounting advice.

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Welcome!

Jacqueline Breslin Director, Human Capital Services, TriNet • Based in San Leandro, CA • 20 years experience in Human Resources • Leads a team dedicated to compliance,

workplace investigations and challenging employee relations issues

• Experience implementing and managing HR programs to include policy development, performance management, compensation, recruitment and retention, learning and development, coaching and M&A activity

Jackie BreslinTriNet

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Subject Matter Experts

Hema Shinde

Human Resources Consultant, TriNet

• Based in Dallas, TX • 10 years experience in Human

Resources • SPHR and SHRM-SCP Certified • Provides compliance and employee

relations support to her Client Services team as well as TriNet clients

Hema ShindeTriNet

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Subject Matter Experts

Shannon Latham

Human Resources Consultant, TriNet

• Based in Reno, NV • 10 years experience in Human

Resources • PHR Certified • Provides compliance and employee

relations support to her Client Services team as well as TriNet clients

Shannon LathamTriNet

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Agenda

▪ Termination Overview ▪ Employee Claims ▪ Types of Terminations ▪ Business Case for Termination ▪ Best Practices in Discipline, Documentation, and Policies ▪ Severance and Separation Agreements ▪ Preparing For and Conducting a Termination Meeting

▪ Post Termination Considerations ▪ Summary

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Termination Overview

▪ At-Will Employee or Contract Employee? ▪ Employment At-Will Doctrine

▪ Exception- Montana

▪ Contract employee

▪ Implied contract

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Employee Claims

• Common Examples: ▪ Employees who allege that they were terminated due to their status

as a member of a protected class of individuals

▪ Employees who claim they were terminated in retaliation for a legally protected activity like reporting harassment or discussing working conditions with employees

▪ Employees who allege they were terminated in violation of an explicit or implied employment contract

▪ Employees who allege they were forced to resign due to intolerable working conditions or environment

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Do: • Have a resignation notice policy in place • Require resignation in writing • Acknowledge the resignation in writing • Review state requirements for final pay • Conduct exit interview

Don’t: Enforce compliance with the resignation policy by means of penalties

Voluntary Separation (Resignation)

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• Performance issues or misconduct • Reductions in Force (RIF)

Involuntary Termination

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Pre-Termination Planning

Do: • Be transparent about your company’s termination policies • Be consistent in implementing the company’s policies • Draft a clear statement regarding the reason for the termination

Don’t: • Terminate an employee for poor performance when there isn’t

substantial prior written documentation to support the term reason • Terminate the employee for poor performance or misconduct when

other employees have not been terminated in similar circumstances • Terminate an employee in violation of local, state, or federal law

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Discipline

Do: • Follow company policies already in place • Assess the nature of the infraction • Compare how other employees have been treated • Review the history of the employee

Don’t: • Discipline employees in public areas • React with anger or threatening comments

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Documentation

Do: • Begin the documentation process as soon as you notice a

pattern of negative performance or behavior • Encourage management to avoid charged language and to

stick to observable facts • Ensure proper guidelines for ▪ Accuracy ▪ Timeliness ▪ Disclosure ▪ Confidentiality

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Documentation…continued

Don’t: • Delay documenting negative performance or behavior to avoid

conflict • Rush into a termination decision without proper preparation

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Handling Reduction in Force (RIF)

Do: • Select employees for layoff • Avoid adverse action/disparate impact • Review federal and state WARN Act regulations to stay

compliant • Review Older Workers Benefit Protection Act (OWBPA)

regulations • Determine severance packages and additional services • Conduct the layoff session

Don’t: • Use small talk to stall the conversation • Enter into a discussion on the reasons behind the decision

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Policies for Terminating Employees

Do: • Proactively identify risk factors for potential post-

termination disputes. Some protected categories include: ▪ Age, ancestry, citizenship or immigration status, color,

disability, gender, genetic information, pregnancy, race, religion, veteran status, etc.

• Draft best practices policies regarding all aspects of an employment termination, including, supervisor training, performance evaluation, and progressive disciplinary action ▪ Train all supervisors and managers on relevant state

and federal laws ▪ Draft performance improvement plans (PIP) ▪ Provide standard rules and policies ▪ Confer with management and legal counsel prior to

terminating any employees

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Policies for Terminating Employees… continued

Don’t: • Consider adverse employment action due to an employee’s

opposition to any practice made unlawful by Title VII, or an employee’s participation in an investigation, proceeding or hearing under Title VII

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Severance and Separation Agreements

Do: • Check for any obligations to provide

severance ▪ Offer letter ▪ Employment contract ▪ Past practice

• Remain consistent in determining the amount of severance to pay ▪ Past practice

Don’t: • Use Severance/Separation

Agreements to avoid good documentation, performance management and/or discipline

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Poll Question

• Have you ever been responsible for conducting an employee termination meeting?

Yes

No

We do not conduct termination meetings

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Preparation for termination

Do: • Consider the appropriate day of the week • Consider the appropriate time of the day • Arrange for a neutral, private setting to hold the termination meeting • Prepare in advance to ▪ Process final paycheck, commissions, etc. due to the employee ▪ Block computer system access ▪ Change pass codes ▪ Get company property back ▪ Remove employees name as signatory to bank accounts or post office boxes ▪ Obtain adequate personal security if the situation may become hostile

Don’t: • Terminate “on-the spot” • Negotiate with the employee on the termination decision

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Conducting a Termination Meeting

Do: • Consider having a third party such as a trusted manager or HR

professional attend the meeting • Provide the reason(s) and key facts supporting the decision • Keep the meeting brief and to the point • Guide the employee on next steps and treat them with dignity

Don’t: • Delay informing the employee about the termination • Humiliate the employee after termination

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Post-Termination Interactions

Prepare for a variety of post-termination communication • Inquiries from other employees ▪ Employee departure announcement

• Telephone calls or emails from terminated employees • Reference Inquiries • Copy of the employee file • Return of company property • Address unemployment claims

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Summary

▪Key Take-Aways ▪ Terminations are challenging and require individual analysis of the risks ▪Policies and procedures

▪Document, document, document

▪ Be consistent

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About TriNet

TriNet provides small and midsize businesses with a full-service HR solution so

they can free themselves from the complexities of HR and focus on their goals.

As their trusted HR business partner, TriNet assumes many of the

responsibilities of being an employer and helps these companies contain HR

costs, minimize employer-related risks and relieve the administrative burden of

HR. TriNet offers bundled HR products tailored by industry and strategic HR

services, resulting in a comprehensive and empowering solution.

Learn more about TriNet at TriNet.com or call 888.874.6388.