Should I conduct employee terminations like Richard Nixon and record everything? What are best practices for conducting employment termination meetings?

Q.     I am going to terminate an employee today, and let me tell you, it is about time!  I know “Horrible Bosses” was a popular, funny movie, but the reason they don’t make a movie called “Horrible Employees” is because they are NOT funny.  I have been paying my soon-to-be ex-employee for the last two years to do essentially nothing productive.  I have been reluctant to terminate her because I am afraid she is going to sue me.  To make matters worse, in public, this employee is as sweet-as-pie and would do great in front of a jury.  She is also very popular in the community where I do business.  But, in private, she is simply nasty.  I want to make sure I get her attitude documented! I am going to activate my smart phone’s recording feature so that I can video the termination meeting.  I don’t want tell my employee that I am recording the termination meeting, because I want to capture her true self. Even if she doesn’t sue, it would be great to put all her nastiness on You-Tube.  After the video goes viral, I will not look like a Horrible Boss, but she will definitely look like a Mean Girl.

A.     Slow down, Milhous…….recording is not the answer.  In California, all people have the right to privacy.  Indeed, it is enumerated in Article I, section 1 of California’s Constitution.  This right to privacy is broad enough to encompass the actions of private employers.  Surreptitiously recording another person may be considered a violation of that person’s constitutional rights.

Moreover, and perhaps more importantly, in California you can be criminally liable if you record another individual without their consent.  See California Penal Code section 632.  Not only does the Penal Code provide for possible jail time and fines, it also permits a victim to sue for civil damages.

And, because the evidence would have been illegally obtained, you likely wouldn’t be able to use it at trial, even in the event that the employee actually sued.

If you are still dead set on recording the termination meeting, you can do so only if the employee consents to the recording.  It is recommended that the consent be in writing.

Notwithstanding the above, there are some things you can do to make sure your termination meeting goes as smoothly as possible:

  • Arrange a confidential meeting place.
  • At least two representatives should attend. Designate one as the primary communicator and the other as the witness.  Have the witness document what was said in the meeting.  When selecting a witness, remember that you want to make sure he or she is not only a good witness for the purpose of the meeting, but would also be able to perform well in a deposition and/or in front of a jury in case of a lawsuit.  If you cannot have a second representative present, immediately after the termination meeting, be sure to document what was said in the meeting.
  • Stick to the content of the termination notice.  Briefly state the termination decision and basis.
  • Be matter of fact.  Meetings should not become argumentative.  Recognize at this juncture that the decision has been made based on the best available information.
  • Be as brief as appropriate – usually, about 10 minutes.
  • Discuss the return of your property, and if possible, retrieve all company property in the employee’s possession at the time of the meeting.

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

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