As promised, here is the balance of my article on the Top 10 Employer Action Steps for your reading pleasure and feedback.
Exit Interview — If the departing employee is willing, the employer should conduct an exit interview during which the employee is asked about future employment plans, reminded of contractual obligations (including non-competes, confidentiality agreements, etc.), and directly asked to return all property belonging to the employer.
CONDUCT EXIT INTERVIEWS FOR ALL DEPARTING EMPLOYEES
An exit interview is a prime opportunity for the company to learn of problems the employee may have been reluctant to verbalize beforehand. Exit interviews also give the company one last opportunity to record that the employee denied the existence of any problems the company should know about (e.g. harassment, retaliation). If the employee does raise a discrimination claim at the exit interview, the company can then investigate before the employee leaves. If the claim is valid, the company can make appropriate efforts to try to retain the employee. Even if the employee remains firm on leaving, his or her damages may be minimized, or possibly removed completely.
While an employee’s denial of any “issues” at the exit interview will not prevent the employee from later bringing a suit for discrimination or constructive discharge (i.e., the harassment or retaliation was so unbearable that the employee was “compelled” to end the relationship), it will make the claim seem rather hollow.
Additionally, it will permit the company to show that it gave the employee every possible opportunity to report improper workplace conduct–which the employee repeatedly overlooked. Under those circumstances, a judge would be much more likely to question the employee’s motivations for the suit.
Notify Former Employees ‘in writing’ of Contractual Obligations — Follow-up the exit interview with an immediate reminder letter of the contractual obligations departing employees may have (e.g., non-competition and non-disclosure agreements), and advise that they take these obligations very seriously. Attach or enclose signed copies of their contractual agreements with the firm.
Contact the New Employer — Explain your expectations concerning confidentiality; and follow-up with a letter to them that provides notice of the employee’s knowledge of trade secrets. This informs the new employer and, more importantly, provides a basis for suing it if the employee discloses or uses trade secrets with its knowledge.
Interview Co-workers — Departing employees often talk to their co-workers. In these discussions, they may foreshadow their post-employment intentions, reveal prior misconduct, and perhaps attempt to recruit co-workers for the benefit of their new employers. Co-workers can be a valuable source of information for investigating former employers.
Social Media — If a former employee’s misconduct or candor is in question, former employers might consider reviewing statements made by former employees on various social media channels. These outlets are sometimes used by departing employees to contact former clients or to foolishly post confidential information.
NB: Firms should seek legal advice about each specific set of circumstances before taking any kind of legal action against its former employees.