Are you conducting proper exit interviews?

Information from this article was taken from the Standard Document “Model Exit Interview Questionnaire,” one of more than 65,000 resources in Thomson Reuters Practical Law. 

Employees part ways with employers for any number of reasons, but savvy employers take advantage of the farewell process by learning what they might do better. When done properly, exit interviews help employers learn about staff satisfaction, identify latent legal issues, inquire into possible restrictive covenant problems, ensure the return of property, and understand reasons for the departure.

So what steps should employers take to ensure they are making the most of an exit interview? Here are some issues to consider. For additional guidance, refer to the standard document in Practical Law.

Conducting the interview

Exit interviews should be conducted by a neutral third party, such as a human resources representative, to put the employee at ease and to encourage honest responses. If an exit interview is conducted by a departing employee's direct supervisor, that employee may be unwilling to be candid. To further encourage a productive conversation, the interviewer should remind the departing employee that the interview is confidential and any identifying information will be kept private, to the extent possible.

Continuing obligations

Employers should review any employment-related agreements in the exit interview, including any non-compete agreements, confidentiality agreements, and separation and release of claims agreements. This reminds the departing employee of any continuing legal and contractual obligations regarding competition, solicitation, and the protection of confidential information that are owed to the employer even after termination.

The interviewer should ensure that the departing employee understands these obligations and has an opportunity to ask any questions in the interview. By resolving any uncertainties before the employee leaves, an employer can better protect its trade secrets and confidential information and increase compliance with non-compete and non-solicitation agreements.

Along with a review of the agreements, employers should provide copies of those agreements to the departing employee. The employer may also choose to ask the employee to sign an acknowledgment certifying that the employee reviewed and received the agreements.

Other considerations

The exit interview is also a good opportunity for employers to review any continuing employee benefits, verify the employee's contact information for any follow-up documents, explain the employer's policy on giving references, and recover any employer property. Employers also may wish to have the employee to sign an acknowledgment concerning return of all employer property. Employers should confirm whether state or local law requires it to provide a written termination notice or other documentation (such as in California and New York).

An employer may discuss the employee's availability to aid in a transitional role or for future work. Where appropriate, departing employees may be interested in continuing the working relationship for certain projects in the future as a consultant or independent contractor. The exit interview is a good time to negotiate those terms. However, employers should avoid simply retaining a terminated employee as an independent contractor during a transition period if the individual will not be working in a different capacity than when he was an employee. Consult Practical Law for more information about independent contractors.

After the interview

Once the interview is completed, employers should maintain all notes and records, including copies of any employment-related agreements. Consider following up with any legal issues presented by the employee's new employment, particularly if there is a risk the departing employee may misappropriate any trade secrets or confidential information.

Consult with legal counsel about any legal issues or concerns that arise from the interview. Report, anonymously, any work environment or employee satisfaction issues to appropriate management personnel.

Law firms are experiencing an unprecedented amount of turnover. See how firms are responding to the “Great Resignation” and learn what you can do to reduce staff turnover.

This article is provided by Practical Law The Journal. The printed bi-monthly publication of The Journal is included with Practical Law subscriptions.