“Announcing” Employee Departures – A Practical, Nitty-Gritty Guide To Minimizing Disclosures About Former Employees
Clients frequently ask me what the “best” way is to announce a particular employee’s departure from their organization, and – as you might expect – that question gets asked more often when the departing employee is leaving under “less than ideal” circumstances. Sometimes it’s because the employee has done something “sensationally” wrong (bad behavior towards coworkers or clients, using the company Internet for things you’d have been happy never to hear about, criminal activity, etc.); sometimes the employee’s transgressions are objectively ho-hum but they’re a long-tenured or popular fixture with colleagues or customers who undoubtedly will be upset by their exit. Whatever the specifics, the same risks and recommendations generally apply.
Indiana has no specific statute or regulation governing how to “announce” an employee’s departure. Indiana does have a “service letter law” that requires employers to provide certain information in writing to the departing employee, but only in response to a qualifying request from that employee. That’s not the sort of “announcement” most employers ask about (though you should be aware of that law and consult counsel if you ever receive anything you think might be a qualifying request from a former employee). Indiana also has a statute that gives a certain amount of immunity (read: “protection”) to employers who provide truthful information in response to requests from other prospective employers, but that too usually doesn’t apply to the situations causing employers to ask questions about “announcements.” Most often, employers want to know what they can/should tell the rest of their workforce and/or customers, clients, students, etc. about why someone they used to work with is no longer around.
The primary legal issue in these situations (at least in Indiana) is good ol’ common law defamation. Generally speaking, defamation is the legal wrong committed when one person makes false statements about some second person – to third parties – that harms the second person. You may have heard the phrases “libel” and “slander,” both of which are “subtypes” of defamation (libel is when the defamation is written and slander is when the defamation is oral). Put simply, “the law” in Indiana surrounding “announcements” of employee departures boils down to this: “don’t’ say anything untrue.” But it would be a tremendous legal and employee-relations mistake to treat that as your only “rule” and decide that you can say as much as you please about any given (former) employee’s situation as long as you can prove what you said was true. “Truth” can be a funny (and much argued) word, and it rests very much in the eye of the beholder. For example, even if you believe in your heart of hearts that you caught a former employee stealing and you can prove it in a court of law if you have to, they may fiercely deny it . . . and they may well be willing to sue you for defamation – and maybe even discrimination or retaliation if they can come up with a way to shoehorn those claims in – if they’re upset enough or afraid enough about the impact on their future employment prospects. It’s always important to remember the costs and disruption of litigation even if you’re confident you’re going to win.
Whatever degree of gossip your workforce or customer base was going to engage in on their own, you’ll only be adding fuel to the fire if you share details about a departed employee’s individual situation (even if they’re objectively and indisputably true). That gossip (or if you prefer a less pejorative term, that “buzz”) doesn’t earn you any profit or goodwill. This is true even in situations involving healthcare or school employees, where management often feels (understandably) that their patient population or their students have a “right to know” why a given employee is no longer around. There may be certain extreme situations involving, for example, allegations of abuse of a resident or inappropriate relationships with students that warrant a more detailed announcement. But – thankfully – those are relatively rare. Absent those sorts of extreme situations, employers generally should limit their “announcements” of employee departures to concise internal messages directing those with a real business need to know how to continue doing their jobs in the recently-departed employee’s absence.
My Typical Recommendations
- Here’s my typical suggested approach for situations where the departed employee was a member of management or otherwise performed specific functions such that some number of your remaining employees really need to be told “something” about the departure…
“EMPLOYEE NAME is no longer employed by ORGANIZATION. For the time being [AS APPLICABLE]: Employees who reported to HIM/HER will report to _________; and/or Questions about XYZ (e.g., Shift scheduling, patient admissions, purchase orders, etc.) should be directed to ___________.”
- If anyone tries to push for additional info, start and try to stay with…“I/We have a philosophy of respect for our employees and we don’t talk about their individual situations.” Don’t say you “can’t” provide additional detail. Say you “don’t” or “won’t.” That’s a subtle but important distinction. Saying you “can’t” implies some sort of restriction and contributes to an overly legal or formal conversational tone that is best avoided. When you say “can/can’t” a prying mind will say “why/why not?” Your interrogator may even argue with you about your ability to speak further or decide to play investigator and go ask others whether there’s really a rule, whether you’re interpreting it correctly, etc. But it’s not really an issue of whether or not you’re “allowed” to provide more details – the fact of the matter should be that you’ve decided you won’t. Phrasing it that way lets you occupy “the moral high ground” by taking and holding a principled position rooted in respect for others. It helps end inquiries from all but the most determined busy-bodies.
- If anyone tries to cajole additional info from you by saying, e.g., “well, we heard x, y, z, and the former employee’s sister’s hairdresser told my cousin she got fired because her boss was rude and mean and jealous of her and that’s just terrible and blah blah blah” proceed to: “I understand and appreciate why you’d ask me these questions, but it doesn’t make the discussion any more appropriate, and it doesn’t change my answer. My/our philosophy/attitude of respect for both current and former employees means we don’t discuss these sorts of things with others.”
- If you get “well, we heard from the former employee himself/herself that this place treated him/her really unfairly and what really happened is dadadada…” just say “Like anyone, EMPLOYEE is entitled to his/her opinion and he/she can tell you whatever he/she wants. We/I always do our very best to treat people fairly, and that’s the end of this discussion. Both you and I need to get back to other business.” You don’t say “I disagree with EMPLOYEE” because that invites additional baiting comments like “oh, so you’re saying they’re lying?” Or “why not?” Again, subtle but important distinctions. You should say “they can say what they want, but again my philosophy is fairness.” That puts you in a position to shut the conversation down politely and move on.
- Avoid using the word “policy” unless: (a) you’re specifically asked about your organization’s policy for disclosing information about former employees; (b) you do, in fact, have such a policy IN WRITING; and (c) your written policy is consistent with everything I’ve suggested above. Employers frequently feel challenged when others press for information about departed employees, and one natural but problematic response is to say that you can’t share because of “your policy.” Using that otherwise innocuous word in these situations tends to send your inquisitor off on a wild goose chase in which they say things like “where’s that policy written down?” If you really were just referring to an unwritten policy or practice, they (wrongly) feel like they’ve caught you in some sort of admission. Or if you do have something to point them to, they read it then start arguing word choice and semantics. You don’t need a policy to support your decision NOT to discuss former employee’s situations with others. You just need to confidently state that your position/attitude/philosophy/etc. is such that you WON’T be discussing further.
These suggestions won’t apply to every single situation, but they’ll get you through an awful lot. And even if it sounds a little silly, practicing some of these phrases out loud (and in a mirror) can make them even more effective when you deliver them in real time. You should not only feel confident in your decision to respect others privacy and refrain from participating in the “buzz,” but you should reflect that confidence in your tone and demeanor when you share that decision with others.
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