(Editor’s note: Curtis Smolar is a partner at Ropers Majeski Kohn & Bentley. He submitted this column to VentureBeat.)
Exit interviews are important tools to uncover potential legal liability early and learn if there are morale (or other) problems in an organization. Done wrong, though, they can land you in some hot water. As such, it’s best to follow certain guidelines when conducting these talks.
For example, create a script of general questions. And always have a neutral third party or someone from another department conduct the interview.
As a practical matter, remember that leaving is a highly emotionally charged situation and try to be empathic to the employee. And never forger that while the exit interview may be confidential for the employee, it is not for you and the employee may repeat to anyone else what you said. As such, work with your legal department or outside counsel to ensure that the questions you ask don’t violate the law.
In that spirit, here are five things you should never say or ask during an exit interview:
“Can we just talk about why you are leaving?” – This is generally a terrible idea. If a person has decided to leave, it is your job at the exit interview to learn as much as possible about why they are leaving while balancing the employee’s feelings and rights. An unstructured conversation creates the potential of the employee feeling singled out, blamed, and/or that his or her rights are being violated in some way (whether they are or not).
By asking standard questions with the help of a skilled employment lawyer, you can achieve your goal of finding out valuable information about your organization without opening up your company to any potential lawsuits.
“Where are you going to work next?” – While the question itself may not be inappropriate, you could be setting yourself up for trouble if the employee’s offer gets revoked or if they get fired from the next job. The employee might allege that you badmouthed them to the new employer and that is why they got fired from the new job.
The best approach is to say good luck and concentrate on gathering information that would be beneficial.
“Did you ever experience any inappropriate behavior? Was Bob hitting on you? He does that you know.” – Where to begin on this one? The question actually implies that the organization knows that Bob sexually harasses employees, the company endorses it and yet they are allowing another employee who works for him to resign.
While an exit interview can be a very valuable tool to determine if there are problems in the work environment, it is not a good idea to suggest to the leaving employee that their supervisor was doing something that could create liability for the company. Instead, through carefully crafted questions, you could find out if there are complaints about a supervisor. These questions could include questions like “how was it to work with Bob?”
If the employee tells you that Bob sexually harasses everyone it could lead to doing an internal investigation to determine the situation.
“Will you sign this release in exchange for the money we owe you to date?” – Payment for past performance, in many states, is not consideration for a release from an employee. Instead, what you should do is offer the employee severance, which is above and beyond any amount owed for back salary, sick days, vacation and/or any other outstanding payment owed.
Also, you have to be careful that the employee does not feel coerced to sign the agreement, which may affect the validity of the release.
“If you go and work for our competitor we will sue you.” – The exit interview is a good time to remind the employee that they have a confidentiality agreement or a non-compete (for states that allow it). It is also a good idea to remind the employee of any other contract provisions that might survive their termination from the company, e.g. arbitration clauses. That said, you do not want to be threatening employees on their way out the door.
Overall, when doing business in the U.S., an exit interview is a good place to get valuable information about your organization, remind your employees of the ongoing obligations regarding your company and potentially get the employee to sign a release. But to protect yourself, stick to a standard script – and keep anyone with an emotional investment in the process out of the room.
Startup owners: Got a legal question about your business? Submit it in the comments below or email Curtis directly. It could end up in an upcoming “Ask the Attorney” column.
Disclaimer: This “Ask the Attorney” post discusses general legal issues, but it does not constitute legal advice in any respect. No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction. VentureBeat, the author and the author’s firm expressly disclaim all liability in respect of any actions taken or not taken based on any contents of this post.
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