harassment or whistleblower complaint, etc.) or otherwise presents a risk for litigation (e.g., wage claims). • Review the termination decision with a third party, such as an employment lawyer, human resources or another member of management. • Plan the termination meeting, including who will attend and what will be communicated. Draft a termination “script” and stick with it. It is important to communicate a clear message that a decision has been made. • Prepare the employee’s final paycheck and, if applicable, a check for unused vacation or other paid time, as well as the federal COBRA notice (or notice of state law continuation coverage for employers with fewer than 20 employees). • Prepare a written termination letter to give to the employee and consider having the letter reviewed by counsel in advance. • Decide whether to offer severance benefits in exchange for a release and waiver of claims. Generally, severance benefits are not required, but an employer may elect to offer severance for litigation risk management purposes. DURING THE TERMINATION MEETING WITH THE EMPLOYEE — CONVEY A CLEAR MESSAGE • If possible, it is best to hold the meeting in person, with two people present in addition to the employee. If you’d like, you may offer the employee the option to “resign in lieu” of termination. It may help the employee transition to new employment quicker. • Communicate the company’s decision in a kind, direct and respectful manner. It is usually best to provide the employee with the reason(s) for termination, even if you are an at-will employer. • Confirm when the employee will receive payment for final wages and any benefits continuation information, and invite the employee to call you with any questions about COBRA or other benefits. • Offer an after-hours (supervised) time for the employee to pack personal belongings. • Get the employee’s key, phone, computer and any other employer property, and disable the employee’s computer access promptly. • Provide a written termination letter; although not legally required in New Hampshire, it is a best practice. AFTER THE TERMINATION — BE PREPARED FOR NEXT STEPS • Consider not contesting the employee’s application for unemployment compensation benefits. Former employees who are denied benefits are more likely to pursue other legal options. • After terminating an employee, be prepared to advise other employees about the change and where to direct questions or work that would have previously been handled by the discharged employee. Employers need to carefully balance explaining why an employee is no longer a part of the workplace with protecting the former employee’s right to privacy and reputation. • If you receive a request for a reference for the terminated employee, follow your reference policy, which for most employers means confirmation of dates of employment and position held. If you still have questions, please contact Peg O’Brien at margaret.obrien@mclane.com or any member of McLane Middleton’s Employment Law Practice Group. 13
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