Negotiating and Handling Sensitive Employment Terminations

As the workplace has changed in the 21^st century, so to have rules for handling termination of employment.  In this webinar Betsy Dorminey discusses how such meetings should be conducted, and debate the pros and cons of recording, securing waivers and releases, offering severance payments, and other considerations, with a view towards minimizing your exposure to litigation. 

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Key Takeaways

Core Objective: This webinar provides employers and HR professionals with a strategic, legally-sound framework for managing employee terminations while mitigating the risks of litigation, discrimination claims, and wage-hour disputes.

Strategic Termination Management

• At-will employment remains the standard in many states, but employers should always maintain thorough documentation to defend against potential claims of discrimination or retaliation.
• Consistency is critical; ensure that disciplinary actions and termination decisions are applied uniformly across the workforce to avoid bias allegations.
• Conduct a comprehensive file review—including personnel and medical records—before finalizing any termination to identify potential legal landmines, such as pending FMLA requests or whistleblower complaints.

Documentation and Evidence

• Centralize all disciplinary notices, attendance records, and performance improvement plans (PIPs) within the official personnel file.
• Maintain current, accurate job descriptions to clarify expectations and provide a defensible basis for termination, particularly regarding physical requirements or essential job functions.
• Consider recording termination meetings to eliminate ambiguity, protect against false claims, and provide a clear record of the proceedings.

Risk Mitigation and Legal Strategy

• Severance agreements can be effective tools to avoid litigation, provided they are drafted carefully and offer value beyond what the employee is already entitled to by law.
• Wage and hour claims are a significant liability; ensure timekeeping systems are accurate and avoid automatic deductions for breaks that may not have been taken.
• When responding to EEOC or OSHA charges, treat the position statement as a miniature motion for summary judgment to clearly outline the legal and factual basis for the employer's actions.

Elizabeth "Beth" Dorminey (00:00):
I would like to welcome everybody today's webinar from Wimberland Lawson, and our title today is New Considerations in Termination of Employment. This is one of those inevitabilities of life that we, , as employers and people representing employers just have to learn to deal with. , One of the interesting things we've noticed in our 30 plus years of practice here is, , that, , when the economy goes down, employment related lawsuits filed by plaintiffs tend to go up. It's inversely proportional. And I think that's because when the economy is robust, everybody's much more inclined to go ahead, find the next new thing and get started. When it's harder to find a job, and it's increasingly hard even for people entering the workforce as well as people with experience of different kinds, it's, it's hard to get a job out there. So that's, , just another reason why this topic is, is timely today.

Elizabeth "Beth" Dorminey (00:55):
Now, assisting me today as my co-host is Mr. Christopher Adams, with whom I've been working very closely for the last, oh gosh, 15 years probably now. And - Almost 20. Yep. Oh, 20. Lord, time flies when you're having fun. , But in order to make it a little bit more interesting than just the single talking head, Chris and I are gonna bat the, , topics back and forth. And, , with that, I guess we'll, , we'll get started. , One of the topics that we'll touch on today in the context of different aspects of, of considerations with termination is, , the influence that artificial intelligence is having. And this kind of has hit everybody in every, , area of employment and life really, , kind of like a freight train. It's, it's changing a lot and it's changing things very quickly. So that's one of our, , one of our, our topics that we're going, going to cover today.

Elizabeth "Beth" Dorminey (01:55):
And also too, let me, , let me make a sort of a disclaimer here at the front. , We're going to have a general discussion today, and it's principally gonna focus on federal law because that's where most of our employment related things come up. , We will touch a little bit on state considerations for the states where we have the most clients, which would be Georgia, North Carolina, South Carolina, Texas. , The rules change a little bit depending on where you are. Some states have more, , protections and some have, you know, different requirements. It's very specific ones sometimes with respect to termination of employment, like mandatory separation notices. , But we will, , we will just cross those bridges as we, as we come upon them. , So our objective today is really just to give you some, some practical kind of checklist information.

Elizabeth "Beth" Dorminey (02:50):
As we always do, we're going to ex - we're going to admonish you to, , to document and be prepared and to, , be sure that you, , review things, , when you particularly use something like artificial intelligence. Or when you're going to have a termination, be sure you look at the file and all of the file before you, you make your final decision and certainly before you deliver the final decision. , Artificial intelligence is used increasingly by employers to, , select candidates when a riff is inevitable. , Artificial intelligence has been accused of discrimination already. And these are some interesting lawsuits and new developments that we are, , encountering. A system where you think it would be completely unbiased and neutral, can be alleged to be behaving in a, in a biased fashion. So, , that, , those. And then too, something to consider always is, , is, is retaliation, which seems to be tacked on to almost every, , EEOC charge that we see these days.

Elizabeth "Beth" Dorminey (03:56):
, It's not very hard to make those allegations and you wanna be prepared to counter those as well as the, , the, the substantive claims that are being made. So I'll stop talking a minute and let Chris point us in a good direction.

Christopher D. Adams (04:11):
You mentioned something interesting. , It seems like there's a tension between state law, especially in the southern states, which have at-will employment cultures, legal systems. , And yet, we have all these federal laws. So how much weight should an employer put on being in Georgia, Carolinas, Texas, all of these at-will states?

Elizabeth "Beth" Dorminey (04:35):
Well, that's a good, that's a good point. , At-Will employments means that you don't have to have a reason to terminate somebody, particularly. You can let them go because you just decided you decided you wanted to not have that person working for you anymore. The, the, the, the adage that we usually employ is that you can let someone go for a good reason or a bad reason. The courts generally say at least that they're not going to review your thinking, , or no reason at all, but you cannot let them go for a discriminatory or retaliatory reason. In other words, that kind of a, , a reason that bespeaks some kind of ulterior motive that's based on something that the federal discrimin - anti-discrimination laws protect against. , At-Will employment still is mainly the law of the land, particularly as a southern land. But out of caution, you should probably do a pretty good job of explaining why it is that you're making the decision you're making, and don't try to rely too much on the at-will aspect of the employment relationship that prevails in the southern states.

Elizabeth "Beth" Dorminey (05:41):
, Certainly the more progressive states, something like New Jersey or California, some of them are gonna require you to have a good reason to let somebody go. And in European countries, that's been the rule for years and years. , You can't just decide you don't wanna employ somebody anymore. , But that's where you wanna play a good defense when you are entering into a, a termination setting.

Christopher D. Adams (06:02):
Oh, that's a good question. So what is a good defense? I mean, what, what level of documentation, what type of documentation, , am I concerned about comparators? Who would comparators be? So if I'm HR, how am I actually gonna build that file?

Elizabeth "Beth" Dorminey (06:17):
Well, the personnel file is always your point of departure because that's where you're going to have your, , intake questionnaire, something also in a medical file that can be relevant too when you ask somebody to disclose any kind of an impairment they might have so that you make sure that you're not putting them into a position where they might be, , liable to cause or exacerbate an injury to themselves. A failure to disclose a medical condition that's pertinent in a situation like that can be grounds for termination. And, you know, even if you're in an at-will state, you still want to be in a position where you can defend yourself again, , and explain why, why you made the decision you made. But the personnel file is a, is the place where you want to centralize, , your documentation of any disciplinary notices, , absenteeism, keeping track of, of, , of attendance.

Elizabeth "Beth" Dorminey (07:12):
You know, a lot of people's electronic systems record late arrivals, early departures and things like that. , When you have a disciplinary issue, you want to be sure you get, , a, , statement from the supervisor or, and/or the HR person who is involved in making a decision to discipline somebody, , particularly if it's something like a, , a suspension or a warning or, you know, if you use a progressive discipline system. Now, progressive discipline systems is something that you would disclose to the client, to the employees when they come to work with you. And that's part of your orientation package, which of course belongs in the personnel file as well with the employee sign-offs. So at that point, you can point to them and say, "Well, we, you know, we told you that this was our, our system and our expectations and, , that should be in there." A job description, a position description is also something that's very valuable to have in a pers - in an employee's personnel file.

Elizabeth "Beth" Dorminey (08:14):
, If you can indulge me with a little bit of a war story one time, we had a, a gentleman who was, , severely visually impaired and he applied for a job at a plant. Now, this was a plant where being able to see was something that you kinda needed to do, but they hadn't put it in their position description. And he claimed that his vocational rehabilitation person said, "Sure, go ahead. Apply to work there." And he knocked over the pencil dish when he was filling out his application, which was a bad sign already. , But, you know, the ability to see was not identified in the, , in the, , , job requirement, the job description. , So that, I think, we did finally prevail on that one, but it was, it was more of a, of a contest than it necessarily needed to be.

Elizabeth "Beth" Dorminey (09:05):
, Oh, goodness, what else, Chris? We got -

Christopher D. Adams (09:09):
Well, that raises a bunch of good points. , First of all, you talked a little bit about progressive discipline, PIPs, performance evalua - or performance improvement plans. We have a case right now where opposing counsel has made a big deal about a lack of a formal progressive discipline system. So what are the pro and cons of having a three strikes, you're out formal policy?

Elizabeth "Beth" Dorminey (09:34):
Well, that's a very good point. , Larger organizations of any sort require more rules than smaller ones. So if you're in a big, , you know, this is why they invented bureaucracy in the first place, because you need to, some organizational principles for running things. So you, if you are in a large organization, a, , a progressive discipline policy can help guide and inform your decisions and also help you support the argument that you are applying the same rules to everybody. And consistency is extremely important in discrimination cases. But your discipline, your, if you have that sort of a progressive discipline system, you also need to make sure that it includes a caveat that says that you reserve the right as the employer to change, change this anytime and also to bypass intermediate steps if the violative conduct is severe enough to warrant, , discharge without, you know, the first warning, the second warning, the final written warning, however, however many steps you need to go through.

Elizabeth "Beth" Dorminey (10:34):
We

Christopher D. Adams (10:34):
Got a good question. This is an interesting one. What if HR, and I'm not sure what the context would be here, but what if HR is documenting poor performance but is not telling the employee and then terminates the employee due to poor performance? So we have documentation, but we never warned them or articulated

Elizabeth "Beth" Dorminey (10:56):
That. That's a big issue. , And that also is gon - something to consider, although we don't focus on it too much in our practice, but in, in, , in the workers' comp world, they want to be sure that they, you know, one of the elements of their case is did the employee know what was expected of them? And if you have, if you are dissatisfied with an employee's performance and you don't let them know, that's probably going to be a recipe for trouble down the line. You want to at least share this information with the supervisor and have some kind of a sit down with the employee and let them know that, , that, that, , they need to take certain steps to improve their performance. And it can simply be, , you know, lack of experience in the workplace. Certainly, a lot of employers who have encountered the younger generations these days find that stuff they think is perfectly basic, like you need to show up for work and you need to show up on time, are messages that are, that are unfamiliar to some of the younger employees.

Elizabeth "Beth" Dorminey (11:57):
And, you know, simply telling somebody, "No, I really do need you to be here at 9:00 every day right on the button," may be enough to make sure that they don't, , they don't indulge in tardies after that. You know, you do have to take on a little bit more education sometimes. What

Christopher D. Adams (12:13):
About performance improvement plans, PIPs, good idea, bad idea?

Elizabeth "Beth" Dorminey (12:17):
, It can be a good idea in some situations, again, to let somebody know what's expected of them, but it also puts them on notice that you are not quite satisfied with their work, so that when you do come down to a termination decision, , down the road, you can say, "Well, we let you know that this is where we've considered that your performance was falling short and, you know, we did not see an improvement in it." It can strengthen the employer's case, , for defending a termination if it's challenged.

Christopher D. Adams (12:45):
You were talking about job descriptions and, , it reminded me of a different area where I would use a job description, , offensively against an employer. And that is if I'm doing some sort of wage hour case. How important is it when employers do these various documents, their handbook, their policies, their job descriptions, to truly be accurate and understand the legal consequences of the job description, of the handbook, of the disciplinary process I've described?

Elizabeth "Beth" Dorminey (13:17):
Well, and even classification of employees, you touched on - Exactly. Yeah. Because if, if I write a, a job position description for someone that I have classified as a managerial and exempt employee, and it appears that there's a whole lot of stuff in there that probably should mean that they're classified as a, , an employee who's entitled to overtime, I'm gonna be putting myself in a bind. , You do want to have all of. Well, one of the services that we do offer is review and, and editing and improvement of employee handbooks. I would include all the position descriptions that you can in one of those. For one thing, you want them in case you have an FMLA situation come up when somebody says, you know, "I, I have, I need a certain accommodation, I need to do certain things." You wanna have that position description already in your materials so that you can send it to the doctor and say, "This is what this job requires, and can this person perform these functions?" And it can be, you know, lifting 50 pounds or, you know, whatever it needs to be.

Elizabeth "Beth" Dorminey (14:20):
But the courts really draw a distinction between a description of a position that is created for the purpose of responding to a request for an accommodation under the Americans with Disabilities Act and one that's already in the can. So of having these things done in advance and having them reviewed to make sure that they're not putting you at jeopardy in some other aspect of the employment relationship like wage hour. Sure.

Christopher D. Adams (14:48):
A topic has come up recently, and you and I have talked about it. What value is there good pro and con in offering severance agreements, perhaps uniformly or to someone you think who might be a problem? What's your opinion on severance agreements?

Elizabeth "Beth" Dorminey (15:05):
I think they can be very useful ways to avoid litigation. And, , but, you know, you, you want to do them right. First of all, , when a lot of employers are having to let people go for one reason or another, if it's, you know, multiple people or something like that, , sometimes they'll offer additional money, you know, sometimes it's calculated on the basis of, you know, a week's pay for every year you've been here or a month's pay, something like that, some kind of a, of a, an, you know, a sweetener when you're going to let somebody go. My position for my clients is that if you are going to give someone more than they are entitled to by law, which is accrued vacation pay, you know, benefits like that, then you should get something in return. And the return should be, "I promise not to sue you in exchange for getting this extra money, , you know, as I'm, as I'm going out the door." , they need to be written carefully, of course.

Elizabeth "Beth" Dorminey (16:03):
You have different rules for people who are over 40 and under 40. Those always need to be taken into consideration. But I think a s - a separation agreement that, , that it helps solve the employee's wounded ego too, and that's worth something because somebody who leaves a little less furious and discontent is much less likely to sue you than someone who leaves and is, you know, absolutely livid with you and determined to take revenge, which unfortunately is a lot of the time.

Christopher D. Adams (16:33):
Let's go ahead and talk about the actual termination event. Mm-Hmm. So HR has, has decided that someone needs to be let go. What is a best practices timeline or checklist for that process?

Elizabeth "Beth" Dorminey (16:46):
Well, we do kind of have a checklist for that, and that might be something that you'd want to train, use in training with your HR people. , In general, I think that you, you, you want to be sure that you're treating your employee with respect, even when you're letting them go. The, the less acrimonious it can be, the better for everybody. , Before you have your meeting, you should carefully review the file, make sure that you don't have any, , smoking liabilities in there that might get you in trouble. For example, if somebody has just, you know, complained about a dangerous situation in the workplace, last thing you wanna do is to have a termination that shortly follows that, that they can present as, "Well, I was a whistleblower and I was retaliated against." And then that unleashes the whole world of, , OSHA 11C complaints for one thing, as well as, , discrimination complaints too.

Elizabeth "Beth" Dorminey (17:39):
You know, make sure that they haven't asked for an accommodation under the ADA or leave under the FMLA. You want to be sure that you're not going to be stepping into, on any landmines as you go into that process. So, you know, make this your final stop before you make your decision. Review the file, review the personnel file, review the medical file, and make sure you haven't missed anything. , Make sure you've got, you know, review statements if there's statements concerning conduct in there, , so that you'll know that you'll be in a position to defend your decision should you be accused of, of discrimination. , Then when you set your meeting, try to put it at a time and a place where there's not going to be a, a, a visible blowup, you know, have it in a, in, in an HR office, have somebody else present, always get a witness, and make sure if you think that this is going to be something that's necessary, you might wanna ask security to just come and sit out in the waiting room just in case somebody gets upset.

Elizabeth "Beth" Dorminey (18:37):
, We do have, and we can send our, you know, anybody who's interested, kind of a, a rough checklist of things to go, to go through when you're making one of these decisions. , One of the things that I really advocate is to make sure that when the meeting starts or before, , make sure that your IT people have logged, you know, have, have removed the terminated, the soon to be terminated employees access to your, , to your internal systems to make sure that they can't, , engage in any kind of sabotage, misuse, download documents and things that you don't want downloaded and so forth. So that's a, that's a, a, an important consideration nowadays that every, almost everybody has some kind of email access or something. , You wanna make sure that they return whatever property they've got, laptops, phones, badges, keys, key cards, things like that.

Elizabeth "Beth" Dorminey (19:35):
, If you want to have a severance agreement, you might wanna have that prepared and ready to go. And again, make sure that it's suitable for an under 40 or over 40 employee. , You should have a. I mean, the HR person should probably conduct this because having the, the employee's supervisor there may make it more personal and the more you can keep it on a high and, , not abstract, but, you know, on a professional level, the better it's going to be for everybody. , Let your employee vent. If they're unhappy, you wanna hear it. There may be things that they know that you don't that would be valuable to learn. I wouldn't in - I wouldn't advise you argue with them, but a lot of times, people get more upset if they don't get a hearing, , no matter what it is that they have to say.

Elizabeth "Beth" Dorminey (20:25):
So you probably just need to be prepared to sit and listen respectfully while they, , while they tell you, , what's been going on. , Make sure that you let them know at the, you know, promptly. I mean, you know, small, this is not the place for small talk, , when you're going to have a meeting like that. You need to kind of cut to the chase. And, , also make sure that you've got the things that you need to give them, like a COBRA notice, if that's part of it. Separation notices are required in Georgia, and make sure that that's completed. And, , then, you know, have a, have a handy exit and let the employee go out to their car without embarrassment. You can say, you know, come back Saturday, we'll pick, you know, you can pick up your stuff, somebody will meet you here, and, and just try to, try to treat the person with respect, because again, we've all seen in the news these cases of people who go off the deep end when they lose their job and they come back and, and wreak havoc at their, their former place of employment, and you definitely do not want that.

Christopher D. Adams (21:27):
All this dovetails into a topic you and I have discussed a lot, recordings.

Elizabeth "Beth" Dorminey (21:32):
Mm-Hmm.

Christopher D. Adams (21:33):
, so I wanna talk a, a bit in detail about recordings, one, more generically, because as you and I have seen over the last seven years, 10 years, everyone has a recording device, you know, they carry around now. Mm-Hmm. So, so one, just talk generally about what you've seen with employees recording things. How well does that pan out for them? How's it getting used? , Secondly, should HR record these termination meetings? And if so, how should that be approached?

Elizabeth "Beth" Dorminey (22:07):
Well, that's a very interesting thing. , Let me say that in all the cases where it's come up that I've had to deal with an, with a plaintiff who has, is relying on some kind of a recording, I've never seen it really help their case. , Very rarely does it help the employee. And a lot of times, it's because like all of you listening today, we've got smart HR people who are trained and they know not to say a stupid thing. , You kind of think of the, the, the recording as a, as, as a, a body cam device. I mean, you can't control what the other employee, , what the, , you know, future plaintiff or employee is doing. A lot of people love to record everything now. And, , in Georgia and most southern states, , you don't have to have the other party's consent to make a recording.

Elizabeth "Beth" Dorminey (22:59):
, I am thinking, my thinking has changed on this a little bit, and I think that HR people who are doing a, a termination and maybe any termination for starters rather than just thinking, "Oh, well, we'll just do this when it's a difficult one," might not be a bad idea to make a recording. And you're not required to let the employee know that you're recording, but it could come in very handy to have a recording, not just to document what goes on and what's said and what's not said. Very much like the police, you know, the body cam is there for the po - the police officer as well as for the, the person being arrested. , It lets you establish what was discussed and what wasn't said and, , also really can be a very valuable training tool for your HR staff because if you have, you know, your own recording of an actual termination meeting, then there's no ambiguity.

Elizabeth "Beth" Dorminey (23:57):
, We've got a case pending now where the employee says there was like a 25-minute discussion of, you know, 50 million different topics, and the employer is saying, "We told him he was canned, he slammed his keys down on the desk and he walked out." So would be lovely to have the employer's termination hearing, , recorded so that we can say, "We made a recording of this, and here's the transcript, and you can listen to the tape if you want to." That's a big ambiguity now, and I know that the person on the other side of that lawsuit is going to try to exploit it for all it's worth. And it's an ambiguity that you wouldn't have to deal with if you had the recording.

Christopher D. Adams (24:33):
Absolutely. , we're almost at 30 minutes. , If - Well,

Elizabeth "Beth" Dorminey (24:39):
Quickly about the, , the, the, , what was the next one? Wage and hour?

Christopher D. Adams (24:44):
Yeah. And you and I talked about that, that, , I think a lot of employers do not understand how plaintiff's counsel think, , and we've been in that world. Yeah. Tell me if you agree or disagree. I think a good plaintiff's lawyer, when John Doe comes in and says, "I was wrongfully terminated," a good plaintiff's lawyer will ask John Doe a whole series of questions, including, "How were you paid?"

Elizabeth "Beth" Dorminey (25:13):
Absolutely. And the FLSA is a very happy hunting ground for the plaintiff's lawyers, principally because it, , is one of those rare statutes that shifts fees. In other words, if the employee wins, the employer has to pay the employee's attorney's fees, and attorney's fees can and regularly do dwarf the amount of money that the plaintiff is entitled to recover. So you can have a situation where, , a plaintiff's maximum recovery is pretty modest, but the attorney's fees are going to be gigantic because you have depositions, you have discovery, you have motions, writing, yada, yada, yada, and it can get up into six figures before you know it. These are cases, to harken back to an earlier topic, where you might wanna think about a, , settlement agreement, , early on. You know, you gotta do the math. The, you know, we make the. We can tell you what the law is, but it's a b - when it's a business decision, it's the employer's decision to make.

Elizabeth "Beth" Dorminey (26:13):
And there are times and places where you don't want to run the risk of, you know, spending a couple hundred thousand dollars and litigating something that is really just going to go into the pockets of the plaintiff's counsel, mainly. And,

Christopher D. Adams (26:26):
And two, not to turn this into a wage hour seminar. , But there are a lot of nuances. So first -

Elizabeth "Beth" Dorminey (26:34):
It's been around. You make a good point there, too. That's been around since 1937. People still don't get it right. , Misclassification is a fertile field for everybody to dig in. , You know, I was, , you know, I was paid as an exempt employee. I didn't get my overtime. I worked 60 hours a week for the last 10 years, and, you know, I should get a bazillion dollars. , Misclassification is a, is a big one. Missed breaks, automatic timekeeping. We've, we've fought all these battles before. , So many people use the phones now to clock in and out. , And, you know, that does provide you a, a good, accurate, , record. But it can also trip you up if it, if it emerges that people are saying, "Oh, well, I, you know, I, I didn't clock out for lunch because I didn't. I had to work all the way through, but they have made an automatic deduction for my lunch hour, and I've been cheated of my pay." And, , and the remedy, of course, is, you know, in addition to the attorney's fees, , double the damages or double the amount of, of unpaid wages.

Elizabeth "Beth" Dorminey (27:40):
And because of inflation and everything else, that can, that can get to be some big numbers pretty quickly. I

Christopher D. Adams (27:45):
Don't know if you saw on this morning's Law 360, but there was a new wage hour collective filed against Kroger - Hmm. In Atlanta, but it's a nationwide, and it has a couple of state-specific ones. But what caught my eye was the, the claim. And this is for Kroger delivery drivers. Hmm. The argument is that Kroger uses an app to map out routes, which I know is very common for delivery work. But the time accounting auto deducts 30 minutes for lunch, and these two systems were not talking to each other.

Elizabeth "Beth" Dorminey (28:22):
Dear.

Christopher D. Adams (28:23):
So the claim is that the drivers following their routes never got there 30 minutes for lunch, but the time system was auto-deducting them for 30 minutes. Mm.

Elizabeth "Beth" Dorminey (28:33):
That could be a, that could be a problem. , I will tell you that the federal courts don't really like nationwide class actions and wage and hour law. That being said, if Kroger used one system nationwide, and it did this everywhere, then that probably is one of those things that's going to, , be taken on with a, with a, with a class representing, , you know, the, the whole United States or wherever Kroger is, is doing business because, , you know, it, it would be a systemic violation and not just a specific one. , And it'll be on the face of the records too, so that, that sounds like that's gonna be lively. -

Christopher D. Adams (29:19):
So tying this back to our termination discussion, once I've let John Doe go, these wage hour issues are baked in, right?

Elizabeth "Beth" Dorminey (29:29):
Well, they can, they can certainly, if they're within their statutory time, and I expect they would be, they can certainly, , add an FLSA claim to whatever discrimination claim they may need. Now, if they're gonna file a discrimination lawsuit, they'll have to go through the EEOC process. And the EEOC is moving more quickly now on their caseload than they have been before. , They, you know, they have to file the charge and you have an opportunity to respond to the charge. If the, , counsel for the Plaintiff is energetic. Sometimes they will just wait till they get their position statement and then they'll ask for a notice of right to sue, cut off the, , investigation by the EEOC and, , and, and proceed in, within 90 days for a, for a lawsuit. , You don't have to do that with a wage hour claim.

Elizabeth "Beth" Dorminey (30:19):
, So you can just go straight to court and there's no, there's no hoop to jump through before you get there. , With a wage hour claim, if you want to try to make it a class action though, you have to get all of the people who are joining to opt in. So like in this Kroger case you mentioned, there will be, , postcards flying around the United States or probably just email this day and age saying, "If you are employed as a delivery driver between this date and this date, you know, contact Dewey Cheatham and how, and we will be happy to give you the paperwork so you can opt in to be included in any settlement for this lawsuit." , so that's more stuff to worry about, I suppose.

Christopher D. Adams (31:06):
We have two great questions. First one, what if the terminated employee secretly records the termination meeting? What will, how will that play

Elizabeth "Beth" Dorminey (31:17):
Out? They'll probably use it in a lawsuit against you. , You can't keep them from doing it. , That's where one of the advantages of making your own recording is there because we have had cases, , where, and you'll remember this one, , there was a, a big click in the middle of the employee's recording and then the tenor and tone of the conversation changed altogether. , Just because they recorded it doesn't mean they haven't edited it after the fact. And they might take out a portion that would, , absolve the employer of liability. And so, you know, good defensive procedure to, to have those recordings. And terminations are not that frequent that I think it's gonna be a special burden to make and, and store. Just add it to the personnel file, add the, you know, add the, the, the sound file from, from the recording to the employee's personnel file when you, after you have a termination and then just hold it and use it if you need it.

Elizabeth "Beth" Dorminey (32:15):
So

Christopher D. Adams (32:15):
Just to be clear, the employee's secret recording will be admissible evidence, assuming things we won't get into at a later, , litigation?

Elizabeth "Beth" Dorminey (32:25):
Usually, I don't, I think it would.

Christopher D. Adams (32:27):
Okay. Okay. , Second, and this was a big topic in and of itself, but just very briefly, company has let John Doe go. , The next thing they hear is from the EEOC. What should they

Elizabeth "Beth" Dorminey (32:38):
Do? Get a, get a position, , , description together. I mean, oh no, rather a position statement together. , Respond to the EEOC charge. And those need to be handled with care and a, a, a, actually a poorly executed position statement can get you in trouble. , We work with our biggest clients over the years to develop a, , kind of a procedure for, , preparing and following up on a, , request for a position statement from the EOC. This is your first opportunity to lay out your case for why you didn't violate any of the anti-discrimination laws. And I treat them like a miniature motion for summary judgment. I include all of the documents. I don't necessarily do it the way the EEOC says they want it because I wanna present it my way. They'll say, "You need to give us the personnel file." Well, I, I don't think that's terribly helpful.

Elizabeth "Beth" Dorminey (33:32):
I'd much rather say in the employee's personnel file, you know, here's the piece of paper that she signed saying that she understood that this was a job where she would have to be on her feet and she could not sit down any during the day. 'Cause I don't wanna hear from the plaintiff later on saying, "Well, you know, I asked for an accommodation so I could sit down." Well, we don't have sit down jobs. We have standup jobs and we told you when you got there. So I want to use this position statement as an opportunity to really lay out a blueprint of the chronology of events that led up to the, , employee being discharged or whatever it was that, that causes them to file, because they can file when they're still employed. , And, you know, and, and present all of that evidence in a, in a cogent and coherent matter with all of the attachments, , to the EEOC so that they can see why we did what we did.

Elizabeth "Beth" Dorminey (34:24):
And, you know, a, , a for cause determination from the EEOC is not determinative of the employer's liability in a lawsuit. If a lawsuit's filed later, doesn't help. , I can, you know, I would, I would rather not have that. I would much rather have a, "We've decided to cease investigating and here's your notice of right to sue." , and then also the plaintiff's lawyer, if they have one, is put on notice that this employer's got a pretty good defense and they've got their ducks in a row and have the documentary evidence that backs up why they did what they did and why it doesn't violate the law. I put a lot of law in my position statements, which is not called for in the recipe when they ask you for submitting a position statement, but I want it to be there because I know that if the investigator has questions, the investigator's not a lawyer, but if they have questions, they're gonna send it to the legal department.

Elizabeth "Beth" Dorminey (35:19):
And I want the legal department to see, oh, wait a minute, this is an Americans with Disabilities Act case and there's a but for causation requirement in this circuit, which means that the plaintiff has to be able to prove that they would not have suffered this indignity or been fired or disciplined, but for the fact that they were disabled. That's a pretty demanding, , requirement there for the proof at the court level, not particularly part of the EEOC's concern, but I want it in there so that if it goes up the chain any, they know that we're, we're prepared.

Christopher D. Adams (35:55):
And you're gonna take the same, , strategy for a Title VII as well as an ADA or ADEA, right?

Elizabeth "Beth" Dorminey (36:00):
Oh, absolutely. Anytime it's the EEOC. Another thing that people are doing now, and we've recently seen a case where they pursued wage hour and. No, they didn't do wage hour, but they did, , discrimination and OSHA and workers' comp. Mm-Hmm. One for the whole enchilada, all the pieces. Now, Occupational Safety and Health Administration has a section called 11C, affectionately, which allows people to, , file whistleblower complaints. And that's very broadly, , broadly defined. This is the same as for Sarbanes-Oxley, but you don't need to worry about that today. But the whistleblower complaints can be as little as, "I was injured on the job, I complained about a dangerous condition, and they didn't do anything about it, so they've violated OSHA." So those cases are interesting because there is not a private right of action. If you have an 11C investigation, it's going to be an OSHA investigator who's going to come and look at the, the claim.

Elizabeth "Beth" Dorminey (37:02):
It's very much like what the EEOC does, except at the end of it, , they. And you do a position statement for them as well. And under the OSHA rules, you have to serve the position statement on the complaining party personally as well as, , sending it into OSHA. , The EEOC doesn't require you to send a position statement to the complaining party at all. But, , if you have an 11C and OSHA decides either it's meritorious or not, if they decide it's not meritorious, that's the end of the road, and the plaintiff cannot do anything further with it. So, you know, that's, that's something else. But an, an angry employee may attempt to retaliate against the employer by filing an 11C charge, as well as an EEOC charge, as well as whatever else they can think of. Now

Christopher D. Adams (37:55):
The E - just one, one final thing, , on this topic. The EEOC file, that is discoverable later on, correct?

Elizabeth "Beth" Dorminey (38:02):
Yes. You can ask them to cough it up for you.

Christopher D. Adams (38:05):
And it can be conceptually submitted as evidence in court?

Elizabeth "Beth" Dorminey (38:09):
Yes. , For what it's worth. I mean, - Oh, for

Christopher D. Adams (38:12):
Example, the, the position paper?

Elizabeth "Beth" Dorminey (38:14):
Yeah. Well, they'll redact it. And then too, the, , the, the plaintiff's counsel is usually going to secure a copy of the position statement, , as part of their EEOC thing. And in discovery, too, you can ask the, , the plaintiff if the case goes to a lawsuit and you're in the discovery process, you can require them as one of the requests for production to, , give you a copy of everything they sent to the EEOC.

Christopher D. Adams (38:38):
So just to make it clear, this is the, the plaintiff requiring the employer to produce all these documents?

Elizabeth "Beth" Dorminey (38:44):
Well, it goes both ways. I mean, I can ask - Yeah,

Christopher D. Adams (38:47):
Sure.

Elizabeth "Beth" Dorminey (38:47):
Yeah, I can ask the plaintiff. I say, you know, give me, you know, in discovery, you know, show me everything you showed the EEOC.

Christopher D. Adams (38:52):
How about EEOC mediation? Like it or not?

Elizabeth "Beth" Dorminey (38:56):
No.

Christopher D. Adams (38:58):
Okay. , Pre-Lawsuit mediation?

Elizabeth "Beth" Dorminey (39:00):
Unless you wanna r - just write a check. They also don't negotiate very cleverly, I think. If they had a different approach to, to negotiation, I might feel differently. But they generally, if you go into mediation, they say, "The maximum you can get is $300,000 and we want $300,000." And, you know, that's just not smart negotiating to me. That, that causes people to, to abandon the process. And, , now, sometimes when you get into court work, some district courts will send you to mediation or recommend it. You can usually turn down mediation. You can certainly turn it down from the EEOC with no bad consequences. If the case goes all the way to, , the appellate level, they require a mediation session to try to settle things. Because one of the things you can count on with judges and courts is that they are going to want to try to do the least they possibly can.

Elizabeth "Beth" Dorminey (39:53):
So this is why we write very carefully for them to give them everything they could possibly want in a f - to include in a favorable decision for us. But you want to point out the, the, the easy points of getting out of the burden and work of writing a, you know, hearing a case or, God forbid, attending a trial and then coming up with a written opinion afterwards. Mediation, certainly, if it's successful for the district court, that's great because everybody goes home and they don't have to f- fiddle with it anymore. I don't think it's often very helpful, but you can be surprised. We, we have had a couple of cases over the years where parties were absolutely at each other's throats and wanting to, you know, murder the other side. But when it, when it, when it, when the, you know, the rubber met the road, you know, A decided, "Well, heck, we'll just buy company B and then we won't have a problem anymore, will we?" And that's the end of it, and everybody's happy, and they all, they all go home.

Elizabeth "Beth" Dorminey (40:54):
But, , anyway, that's a rather convoluted and indirect answer to the question, but, -

Christopher D. Adams (40:59):
Well, it raises a, a point, , arbitration agreements. You like them or not?

Elizabeth "Beth" Dorminey (41:03):
, I think they're not a bad idea. , Again, you have to be careful about them. Don't get piggy. Don't ask for, , you know, don't make it so onerous for the employee that they, you know, have to travel to some, you know, distant location or that they have to bear the expenses of it or that they don't have to disclose things. But an arbitration agreement, , I don't know that I'm that much in favor of them now that I think about it. They, they, they can be useful because, , arbitration generally is quicker and cheaper than going to court. On the other hand, arbitrators are more expensive than they ever used to be. They are like top flight lawyer fees and they will charge you by the hour too. As the employer, you're probably gonna be on the hook for it. , And, , they tend to, in the solomonic sense, split the baby in half.

Elizabeth "Beth" Dorminey (41:53):
Absolutely. Arbitrators move with the idea of coming up with a solution that is somewhat unsatisfactory to both sides, and you hope that it's such that both sides can agree that, you know, we're gonna cut our losses and just, you know, sign on the dotted line and go home and not bother each other anymore.

Christopher D. Adams (42:14):
Well, thank you. It's been 45 minutes.

Elizabeth "Beth" Dorminey (42:16):
All right. If anybody has any more questions, drop us a, drop us an email and, , we'll be happy to respond to it or just pick up the phone and give a call. Always glad to hear from folks. And, , thank

Christopher D. Adams (42:28):
You. And too, we, we do have an outline of this. We do have an outline of this presentation, if anyone wants that.

Elizabeth "Beth" Dorminey (42:33):
Yes. I'd be happy to supply that too. Well, thank you. Thanks, everybody. And thank you, Chris. I appreciate it. Thank you, Betsy.

Status: Available On-Demand

Webinar Date: Friday, August 07, 2026

Start Time: 12:00 PM

End Time: 12:45 PM

Venue: Zoom