Terminated employee request file
fredclearspot
6 Posts
Looking at Florida-
A terminated employee is making the following requests- by the way we know she has visited an attorney and on the surface we are relatively certain that the attorney sees the termination as an AT Will action.
The employee has asked for the following- Copies of the written warnings from before her termination, an outline of her duties, and a copy of our policy for terminating employees. We are inclined to ignore the request until or unless it comes directly from an attorney.
It feels like a fishing expedition.
Thoughts and does anyone know the rules in Florida for handing over employee files to terminated employees.
Comments
We actually just discussed this question where it was asked in a different topical area. See:
http://community.blr.com/hr/forums/thread/5696.aspx
It is not likely that you owe this person anything now that they are not an employee anymore but in some states you may. Although the other discussion may be helpful, if someone from Florida cannot answer you authoritatively, then you should get an answer from an employment law attorney in FL.
On one hand, you don't have to discuss someone's cause of termination with them once they're gone. I know at least one consulting firm that doesn't give reasons when they terminate employment on behalf of their client. They just say, "Well Bob, I must inform you that your employment has been terminated," they gather badges, keys, etc, and send them on their way. I don't think, from a practical standpoint, that's a good idea. It raises suspicions in the former employee. Personally, I think the right thing to do is have a discussion and answer their questions carefully with full attention to each and every word you utter. They should leave your office with a very clear understanding of why they are no longer employed. In the best case scenario, they should also accept that it was the right thing for your company to do, as well. That's a nice way to handle the meeting you have when you tell them they aren't entitled to copies of anything but you wouldn't mind discussing the issue with them.
I would not respond to any written request that isn't attached to a subpoena, although I might be inclined to share the written request with counsel if, as in this case, I wasn't certain about my obligations.
I actually don't give reasons when I terminate people. I believe that no termination (for cause) should come as a surprise. By the time I get around to terminating someone, they know exactly that it is coming. If I do have that situation where they claim surprise, then I say, we have gone over your performance before and we have not seen the requisite improvement. Then I go into COBRA and final paycheck stuff.
We do let former employees review their personnel files within limitations. You don't have to accomodate them in anyway, so you can let them look at it at your convenience.
We are still an at-will employer so we can terminate them for a variety of reasons.
If you want to play hardball, you can wait for the subpoena, but if you do that, it looks like you are hiding something (which you may be) at which point, a lawyer working on a contingent fee will go get the subpoena which could just increase what you may have to pay out.
Time for that good ole fashioned cost/benefit analysis...
[quote user="4179993"] I believe that no termination (for cause) should come as a surprise. By the time I get around to terminating someone, they know exactly that it is coming. [/quote]
This is a best case scenario. However, unless you are the sole power of termination in your organization, it doesn't always work out that way. When some other manager makes a legal termination but blows the delivery, it's part of HR's role to fix the problem.
CAVEAT: I would NOT provide the information prior to clearing it through your own employment counsel first.
I would try to weigh the decision based on what documentation you have and how solid it is. For example, does your company have a written disciplinary/job performance policy? Did you follow it? Did you give the employee the chance to correct the problem through warnings? Your counsel should be able to review what you have to see if there are any red flags.
Until you get a subpeona or are under investigation by the EEOC, you are not legally required to provide this information. But by providing it upfront, rather than waiting for an EEOC claim, you might be able to shoot this boat out of the water before it leaves the dock. Because the EEOC will ask for this documentation, as will unemployment if you or the ex-employee appeals the decision. And the EEOC will also ask for a lot of other documentation on other terminated employees. In our case, they asked for all terminations that happened in the last 18 months, all disciplinary reports, and lots of census data....all to return a finding "no cause" on our part after a 6 month investigation that included personal interviews.
The investigation took many hours of my time and effort, along with about $1000 in attorney bills (which is actually low since I only used her as a reference when absolutely needed). If I could have forestalled it by providing information upfront to the ex-employee's attorney (in my case he never had one), I would have.
Thank you all for your input. All very helpful and supports the decision we ultimately made. So far so good.