Departing Employees: A Checklist for Employment Counsel

Workers rarely remain with the same company for 30 or more years as in the past. Many employees and employers continually evaluate their current situations to meet their needs. Realistically, most employees and employers will end employment relationships within about five years--or less for employees under 35 years old.

Whether employment ends voluntarily by resignation or by employer discharge, counsel must prepare employers for employee departures. Clear communication of all aspects of the termination are critical: severance arrangements if any, the employee's final day of work, when benefits will end, notification of benefits' continuance if applicaple, and an inventory of, and the deadline for, company equipment and data to be returned (and action to take if not returned).

Counsel must also consider any agreements regarding non-disclosure, noncompete, and non-solicitation and advise the employer on whether, when, how, and the cost to enforce such provisions. Counsel should also be knowledgeable on First Amendment rights versus potential disparagement claims in the employment arena and on social media.

Listen as Robert B. Fitzpatrick, Founder of Robert B. Fitzpatrick, PLLC, discusses practical strategies for handling an employee's departure in order to avoid liability. The speaker will outline the steps for an employer to follow before, during, and after the employee's service ends. Employee counsel will learn strategies for managing an aggressive former employer seeking to enforce restrictive covenants.

1. Termination checklist in general
2. Communication between employers and employees
   1. Data and document misuse and appropriation
   2. Preservation obligations
3. Return of company property
4. Restrictive covenants
   1. Non-disclosure
   2. Noncompetes
   3. Non-solicitation
5. Social media, free speech, and non-disparagement

The panelist will review these and other relevant topics:

• What are the most crucial considerations for employers when making termination decisions?
• What must an employer communicate to departing employees under state and federal laws and agreements between the employer and employee?
• How can employers mitigate company data misuse by departing employees?
• What are best practices to regain company equipment, documents, and data? When should the employer pursue a claim against a former worker?
• What must counsel consider in enforcing an employer's restrictive covenants against former employees? What defenses are available to former employees?
• Can a company impose and enforce restrictions on a former employee's communications and social media posts regarding their former employer and employment?