Investigations
What is the biggest error employers make with respect to workplace investigations?
Not investigating when they have an obligation to.
In the age of remote work – okay to terminate by phone or email?
Ideally, not. Duty of good faith!
What are the employer’s obligations around mental health and neurodivergence?
The duty to accommodate.
True or false: a termination clause can significantly limit severance rights.
True, to the minimums in the ESA.
What is the biggest error investigators make with respect to workplace investigations?
Not providing particulars of the allegations to the respondent.
When dismissing many employees, what is a strategy to ensure equitable severance?
Use a framework – consider age, LOS, and COE
What documentation is needed for accommodations and fitness-for-duty evaluations?
Enough information to determine abilities.
Two key reasons why termination clauses are struck down by courts.
They lack consideration or violate the ESA.
Is mediation appropriate in the investigation process or instead of an investigation?
It depends, but it can be.
What makes a termination “high risk”?
Employee recently on leave or filed a complaint.
How should HR handle vague or incomplete medical notes?
Ask for more information.
Key phrases to avoid in termination clauses?
“At any time”; “in its sole discretion”; “pay in lieu of notice”
How do you deal with anonymous complaints?
If they give rise to an obligation and can be investigated, they should.
Why is “repudiation” getting a lot of press?
Leads courts not to follow termination clauses.
How should HR handle remote work requests?
Determine if it is a need (human rights) or a want.
Can an employer fix an unenforceable termination clause after-the-fact?
Yes. Provide new consideration or advanced notice.