The employment relationship can end for a variety of reasons and in many ways. How a separation occurs has as much to do with limiting an employer’s risk as why separation was necessary in the first place. What follows are a few key steps employers should keep in mind before, during and after a termination has occurred.

• Understand applicable laws. Given that ‘at-will’ employment is the default rule for private employers in the U.S., employers may end the employment relationship for any reason—with or without notice—so long as it is not for a wrongful reason (such as discrimination, retaliation or harassment). By the same token, employees protected by these laws are not insulated from termination on legitimate grounds, such as for poor performance. Nevertheless, it’s important to understand state and federal employment laws that might be grounds for a lawsuit.
• Determine whether the situation poses risk of litigation. If you are unfamiliar with the process of termination or the circumstances are complex (e.g., issues involving protected or disability leave, claims of harassment, retaliation or discrimination, or union activities) it is worth consulting legal counsel to confirm the decision and next steps.
• Develop a termination checklist. Developing a checklist will assist in ensuring that company policies are followed consistently and that the process is carried out in accordance with state/federal laws. Below are five important checklist boxes to tick:

1. Document the reason for the termination. There is no need to provide a detailed written monologue covering all the reasons why the individual was terminated. However, the relevant key points should be noted including which company policy was violated and how, who was involved in the termination (the decision to terminate and the actual termination), when was the decision made, and what was discussed.
2. Final paycheck issued. Most states have statutory requirements on when a final paycheck must be provided depending on whether the termination was voluntary or involuntary. An employer who terminates an employee must present the employee with their final paycheck at the time of termination. A note on the check should indicate “Final Check” and pay wages through the date of termination.
3. Unused Accrued Vacation Paid. Unused accrued vacation time is treated the same as wages in California, Colorado and New Mexico, and must be paid at the time of termination. In Arizona, as of August 6, 2016, the definition of “wages” no longer includes an express reference to vacation pay.
4. COBRA Eligibility Notice/HIPAA Certification provided. These notices must be provided by the employer if not provided by the plan administrator/carrier.
5. All legally required notifications provided. Many states require employers to provide terminated employees with specific notices. For example, California requires several including, but not limited to, Employment Development Department “For Your Benefit” and Change of Employment Status Notifications, Department of Health Services “Health Insurance Premium Payment” program notice and written notice of coverage options if not provided by the plan administrator or carrier, and COBRA and Cal-COBRA notices.
6. File the checklist and accompanying documents, if any, accordingly.

• Disable Access to Electronic Resources. It’s crucial for employers to safeguard their sensitive information and deter former employees from potentially misusing company electronic communication systems. To achieve this, it’s imperative to take the following steps:

1. Deactivate access to company email accounts.
2. Disable voicemail privileges.
3. Revoke login credentials.
4. Terminate remote login capabilities.

• Collect Company Equipment: Absent contractual language setting out the terms and conditions for returning company property, the employer should simply request the terminated employee to return or dispose of (if outdated or duplicated) all specified property. Once all company resources have been successfully retrieved, it is prudent to have the departing employee sign an acknowledgment affirming the complete return of all company assets.

By implementing these measures, organizations can mitigate litigation risk and ensure the protection of valuable data and property.