When Is it Safe to Discuss Departing Employees?

The #MeToo movement and efforts to provide greater transparency in hiring and firing decisions has turned the event of a departing executive into a land mine for some companies. Last month, Google’s top executives faced a testy town hall meeting with employees after it was revealed in the New York Times that several key employees who were forced to resign after credible sexual harassment charges were lodged against them left with heaping severance packages and public praise for their performance.

While certainly not every termination or departure is clouded, the culture and media focus on sexual harassment and misconduct means that unflattering stories are bound, eventually, to get out. It means that HR and company leadership needs to walk a fine line when it comes to explaining departures, both internally and externally.

In the past, companies often allowed the departing employee to control the narrative, usually pegged to something about spending more time with their family, or pursuing other opportunities, and did little more than publically wish them well. Now some are wondering if ethically, it’s right to unleash what sometimes are serial violators to blithely continue their conduct at another company. Reference checks that never mention anything negative, and confirm only dates of employment and job titles, which have been de rigueur for years, are part of this pattern.

As the pendulum starts to swing and employers begin to rethink these traditions, a few CEOs have adopted what can only be termed as “radical transparency.” At Basecamp, a Chicago-based company that provides cloud-based project management tools, all departing employees get the chance to send a farewell email (though the content is pre-approved by the company). Then, several days later, management sends out an email to the entire company, detailing why the employee left. The founder and CEO determined that radical honesty was better than a vacuum soon filled with rumors, which can cause employees to worry about the stability of their own positions. At Basecamp, it’s apparently working, as their employees tend to stay with the company longer than average for their industry.

Employers are not prohibited from telling others that you were terminated, laid off, or let go, providing they are truthful. They can even share the reasons that led to the termination. However, if an employer falsely states that the employee was fired or cites an incorrect reason for termination that is damaging to his or her reputation, an employee can sue for defamation. While these cases rarely succeed, they do sometimes, which should stand as a caution for employers to seek counsel when they are tempted to share more than confirmation that an individual has left the company. Whether or not the departure is negotiated, or done summarily, it makes sense to include legal counsel in the decision-making process, including what information to share about the process.