Page 29 - BusinessWest January 9, 2023

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what he did to get terminated (if you have done it right). There is no legitimate reason to be rude about
it.
Terminating with dignity or grace does not mean
that you should not terminate an employee. Once an employee gets to termination, he should have already had an opportunity to cure the conduct or behavior for which he is getting terminated. As such, by the time the writing is on the wall, he should not be sur- prised. If he is, that might partly explain why he is get- ting terminated.
Next, make sure you reach out to your employ- ment counsel for assistance with properly preparing a termination package (necessary correspondence, pay requirements, and timing considerations). A mis- step here can get you in hot water — triple hot water. Failure to pay an employee what is due at termina- tion has no defense, and the remedy to the employee includes three times the wages due. Call your counsel before terminating.
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“Please know, you can terminate an employee for any reason at any time so long as it is not an illegal reason. That means you cannot terminate because
of an employee’s protected status or activity or in a manner inconsistent with a collective bargaining agreement or other employment agreement.”
I know this article is not going to make me popu- lar among some folks. I am not trying to be cold. I am just being practical. Your employees are your life
“Following the enactment of the Speak Out Act and the earlier EFASASHA, employers are encouraged to be proactive about compliance and should review their template releases and agreements to ensure that pre-dispute non-disclosure and non-disparagement agreements do not violate these laws.”
have already been entered into containing such man- datory arbitration provisions.
Following the enactment of the Speak Out Act and the earlier EFASASHA, employers are encouraged
to be proactive about compliance and should review their template releases and agreements to ensure that pre-dispute non-disclosure and non-disparage- ment agreements do not violate these laws.
It bears noting that the Speak Out Act does not invalidate non-disclosure and non-disparagement agreements relating to claims which do not involved sexual harassment or sexual assault. Thus, employ- ers may consider including ‘carve-out’ language for
force. I get it. I am one. But they are also human capi- tal. If you manage your human capital like you man- age your non-human capital, then you should be able to terminate employees without fear.
Processes, procedures, practices, and protocols are kings. Remember, keeping a toxic employee is more costly, in a variety of ways, than the cost of defending a claim — that is, if you have your ducks in a row. So get your ducks in a row. Plus, the remainder of your staff will appreciate the decision. Heck, the terminated employee may appreciate it in time; some- times it just isn’t a good fit. Cut them free to find their better role. In the case of the business decision, your shareholders or business partners will appreciate your fiscal responsibility. BW
Tanzania Cannon-Eckerle, Esq. is chief legal and administrative officer for the Royal Law Firm; (413) 586-2281.
pre-dispute non-disclosure and non-disparagement agreements to make clear that the pre-dispute agree- ments do not apply to later-arising sexual-harassment or sexual-assault claims.
Employers should review their arbitration agree- ments and any language pertaining to future man- datory arbitration agreements to ensure sexual- harassment and assault claims are carved out from those provisions as well. Such agreements may be revised to include clear language indicating that,
with regard to claims of sexual harassment or sexual assault, employee signatories will have a choice — they are not required to submit to arbitrations and may bring their claims in court. Employers may also wish to consider updating sexual-harassment policies in their employment handbooks to include similar clarifications.
In reviewing such employment agreements, con- fidentiality agreements, arbitration agreements, and employee handbook policies as they relate to sexual harassment and sexual assault for compliance with the Speak Out Act and the EFASASHA, it is recommend- ed that employers seek legal advice and guidance from an experienced employment-law attorney. BW
Briana Dawkins, Michael Roundy, and Mary Jo Kennedy are attorneys in Bulkley Richardson’s Employment Law practice.
Speak
who experience sexual harassment in the workplace are forced to leave their jobs or their industries, or to pass up opportunities of advancement. According to the congressional findings identified in the act, one in three women face sexual harassment or assault in the workplace, approximately 90% of whom never file a formal complaint.
The congressional findings also state that non-dis- closure and non-disparagement agreements between employers and current and former employees, pro- spective employees, and independent contractors can perpetuate illegal conduct by silencing survivors of illegal sexual harassment and assault. Therefore, Congress finds that prohibiting such non-disclosure and non-disparagement clauses will empower sur- vivors to speak out, hold perpetuators accountable, improve transparency around illegal conduct, and make workplaces safer and more productive for everyone.
The Speak Out Act complements the enactment earlier this year of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFASA- SHA). That act, which applies to employers subject to the Federal Arbitration Act, prohibits mandatory arbitration agreements between employers and employees for sexual-harassment and sexual-assault disputes. It also applies retroactively to arbitration agreements between employers and employees that
Valued relationships. Something we build.
Robert Borawski President
(413) 586-5011 Borawskiinsurance.com
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