Offensive Strategies for Employee Issues: Using an Exit Interview to Identify Potential Claims

Posted by HLL Admin

Employers face a multitude of issues when it comes to handling the exit of a disgruntled employee. Even for employees leaving on good terms, however, the use of an exit interview can be a smart way to gather important information about the workplace in a candid manner. An exit interview allows an employer to hear, firsthand, about any problems that the employee may have or have had during their employment. This includes issues that may form the foundation for a lawsuit.  Performing the exit interview also allows the employer to document the non-existence of any viable claims, preserving important defenses to any subsequent claims or litigation.  When considering implementing an exit interview policy, employers should consider the following best practices:

1. Provide an Exit Questionnaire – Often, you may not know the reasons for an employee’s departure. A well-designed exit questionnaire allows the employee to present any issues they may have in writing, without the fear of discipline or reprimand. This is a valuable tool because it not only documents the existence of any issues the employee may have but it also documents issues which the employee does not complain about. For example, we once had a client who had an employee complain to a fire chief about the treatment she received from her shift officer. The fire chief did not document the conversation. The employee later claimed that she told the fire chief that she was being treated in a disparate manner because of her gender. Without any documentation, it was strictly a “he said, she said,” case. If you give an exiting employee the chance to air their grievances in writing, you are, in effect, able to document exactly what their complaints are.

2.  Identify the Appropriate Person to Conduct the Interview – If an employee is disgruntled with their supervisor and is leaving because of that supervisor, you can’t expect to gather any reliable information by having the supervisor conduct the exit interview. In these situations, it is important to offer a second (or even third) option for the employee to choose to have the interview with. Choosing the right person to conduct the interview means you maximize your opportunity to gain valuable information.

3. Document the Conversation – Using the exit questionnaire as your guide, the substance of the conversation during an exit interview should be well documented with special care to ask follow up questions and document the responses. For a disgruntled employee, this is your opportunity to clearly identify any and all complaints especially those that might be the basis of a discrimination, harassment, retaliation or whistleblower claim.

4. Follow Up – If you identify legal violations from the employee’s exit survey or interview, it is imperative that you take prompt remedial steps to rectify the situation. This usually means performing a thorough investigation into the issues and stopping any unlawful activity. Depending on the nature of the issue, it may also mean a settlement offer in exchange for a release of claims from the departing employee. It is important to realize that if an employer fails to take appropriate action when faced with a legal violation, the exit survey and interview will actually worsen their position in the event of litigation rather than improve it.

Please note that this article is a general summary and does not attempt to cover your specific situation or detail the obligations you have under state or federal law. Natalie Higgins is a labor and employment lawyer based in St. Louis, Missouri. She represents employers in all facets of litigation as well as providing consulting and training services to employers who want to proactively manage their employee litigation risks. Questions about your business to improve its discipline policy? Contact Natalie at natalie@hugheslawyersllc.com.

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