February 2026 Volume 8

OPERATIONS & MANAGEMENT

EMPLOYEE SEPARATIONS Key Considerations for an Uneventful Exit By Johanna Fabrizio Parker

I am an avid reader of employment-related news and opinion pieces. I like to see what is happening (as being reported) as well as what people are talking about. Employee exits remain a common topic. While not pleasant for anyone, I have found that an employer’s ability to handle these conversations well – regardless of the underlying facts or situation – really can make all the difference in how an employee reacts. The first issue is planning. Have you reviewed the necessary considerations, e.g.: • Why is the employee(s) being separated? • Does the reason for the separation match any records you may have, e.g., how do you reconcile an employee being separated for performance reasons while always ranked at “exceeds expectations”? • Did you consider any other risk factors, e.g., did the employee just request a leave or make a complaint that could be considered “protected activity” under the law? There is no one-size-fits-all answer for responding to any issue. But I have to believe it is better to have known and addressed anything beforehand versus surprise after the fact. The second issue is both planning and logistical preparation. What do you need to effectuate the termination? • There is no requirement under federal law that an employer provide a specific written notice of termination. However, many states have some notice requirements, ranging from just a form notice to more details (upon request). Also, employees with contracts can have specific contractual notice requirements. • Even without a specific requirement, most employers have end-of-employment details to share with employees, e.g., insurance continuation, return of equipment. To address these and any legal requirements in your particular location, I like to see some written notice provided. • In some circumstances, there is a requirement for advance notice. This can be due to the employee’s contract or under the federal Workers’ Adjustment Retraining Act (WARN) or its state counterpart. (And, again, the state mini-WARN requirements vary by state.) If you have a federal WARN event, e.g., a plant shutdown or mass layoff impacting at least 50 people, you have certain pre-event notice obligations to employees and to designated government agencies and/or elected officials. • Timing of final pay also varies by state. Some states provide that anything owed must be paid by the next payroll, while other states require immediate payment. And still other states set some time limit in between. Additionally, what must be included in final pay? Here, the key issue tends to be whether any accrued and unused vacation time or PTO is owed. Again, your requirements vary by state law and/or your own policy. Some states allow you to write a policy providing no payout at termination (so long as it is clear) while others require payout.

The next thing I encourage employers to think about is: what are you going to say to the employee(s)? I strongly discourage talking about yourself or how badly you feel. While I am sure this is true, it’s really not about you. I also discourage employers’ saying it’s not “a good fit.” Employees (and their counsel) tend to say that this statement – while not meant this way – masks some kind of discriminatory motive. In short, be honest. If the employee did not meet performance expectations, say so. If the employee is being laid off because you do not have enough work, say that. If the employee is being laid off both because you need to reduce staff and he/she was not a high performer, this should be the message. I am not saying that this meeting is the time to detail every deficiency. It is not. But, as a best practice, you need to share the overall reasoning. What about severance? Again, this depends on your own policies, e.g., do you have a severance plan that provides for severance in this circumstance? Also, severance can be part of employment contracts. If there is a group of employees being let go, and you want to offer severance tied to a release agreement, there are certain group disclosures that need to be part of that agreement in order to get a release of claims under the Age Discrimination in Employment Act (ADEA). Finally, what about the exit meeting itself: • Where do you have it? In person? Via some video platform? • Any safety concerns? • What about access post-separation? Prior to the pandemic, I would never have thought about a video termination meeting. It just seemed so cold. But given how we work now, I think these meetings can be a good choice – especially as they allow for more privacy for the impacted employee. If you do meet in person, I suggest thinking about: Where does the employee go following the meeting? How can he/she easily exit the building? This planning also can help to address any safety/security issues, or any concern about them. Relatedly, with and/or immediately following the separation, an employer should take all steps to end the exiting employee’s access to the employer’s information, systems and physical location. There is often the question of how and when an individual can go back to his/her work area. Again, there is no one-size-fits-all approach here. I encourage employers to treat departing employees respectfully, so having an escort does not always feel great. But an employer needs to evaluate its particular situation. This is where an offer to have someone meet the departing employee after hours and/or to pack up personal belongings and ship them out can help to address these exit issues. I know – a lot to think about. But planning really can assist with the transition(s) and minimize post-exit risk. As always, while I try to be helpful, these thoughts are informational and educational, and not legal advice. Please do consult counsel with your specific questions and situations. Johanna Fabrizio Parker Partner, Labor & Employment Benesch Friedlander Coplan & Aronoff LLP Email: JParker@beneschlaw.com Phone: 216-363-4585

FIA MAGAZINE | FEBRUARY 2026 34