Submission Date:
Question:
A former employee who was fired for cause was denied unemployment benefits from DOL and has appealed the decision. Our board has been advised by our outside HR provider to not have contact with the former employee to make sure they don’t provide any support for the appeal or a legal claim. Is that a valid concern?
Answer:
Yes, it is a valid concern.
Let’s break it down and explore why.
Once an employee is terminated—whether or not for cause—a former employer should have policies to govern the post-employment relationship.
At a bare minimum, these policies should address:
- If/how dates of employment are verified
- If/how references are given
- How requests for contact information are handled
- How former employee requests for information and action are addressed
This last item is the territory we’re in right now.
For a host of reasons (respectful relations, consistency and accuracy of information, liability...), requests for information and action[1] from former employees should be handled by one person[2] (even if that person ends up bringing in other people).
For (a positive) example, if a former employee requests a reference five years after leaving employment, the request should go to the designated person, even if the recommendation letter ends up being signed by the board president. This will ensure the request and the recommendation is handled just like any other, which avoids accusations of favoritism or inaccuracy.
For a not-so-positive example, if a former employee is seeking information for a legal claim (workers’ comp, wrongful termination, unemployment), that request should go to the designated person, even if the recommendation letter ends up being signed by the board president. This ensures that the information will be released only after the proper releases are in place (for instance, before a recommendation is sent, it is wise to get a waiver of liability).
The reason this “one stop shop” approach is important is because information from different sources can (in our positive scenario) result in inconsistent information that could hurt the former employee or (in our negative scenario) could result in a trustee or director providing information that could harm the library and even serve as the basis for a legal claim.
Trustees, in particular, should be mindful of their “duty of loyalty” when considering a post-employment request. The “duty of loyalty” means that when taking an action as a trustee (such as answering questions from former employees about their employment), the trustee is keeping in mind the interests of the library. If the library has a policy on post-employment inquiries, the trustee should also keep in mind the “duty of obedience,” which would require them to follow the policy.
This does not mean that library trustees and other leaders shouldn’t elevate the concerns of former workers! It just means that when they do so, it is per policy, and organized in way that doesn’t create undue risk to the library.[3] If the library messed up, that needs to be corrected, but from the legal perspective, how something is done is just as important as it getting done.
So, when there is a post-employment inquiry, follow the policy to respond to it. If there is no policy, adopt one.
Thank you for a great question.
[1] Examples of “requests for information and action” by former employees may include: filling out online forms, speaking with a headhunter, helping with a background check, certifying when a “qualifying event” occurred, asking for copies of a job description, asking for copies of a performance evaluation, requesting a tour of the old break room (staff-only space), taking pictures of the bookshelf that fell on them, asking the age of the person who was hired to fill their old position, asking for copies of an incident report, etc.
[2] One person, or at a larger organization, one department (HR).
[3] Examples of a relevant policy that might “elevate a concern” include a library’s conflict of interest policy, whistleblower policy, grievance policy, sexual harassment policy, and data breach policy.
