Exit Interview
Overview
Exit interviews are useful for a variety of reasons. In the context of a voluntary termination they can be used to reinforce employee responsibilities and recover company property. In the context of involuntary terminations the exit interview may be part of the termination process.
New cases raise problems with exit interviews that the employee views as false imprisonment and companies have been held potentially liable for damages for restraining the employee's freedom. It is important to safeguard the employee's dignity and make the exit interview, and the final exit from the company property, as dignified as possible. The employee should not feel that they are physically restrained (locked doors, security guards) and the physical setting should be as business like as possible.
Obviously, some circumstances in the involuntary termination context can create physical dangers to persons, property and the calm operation of the workplace. However, to the extent possible, exit procedures should cause the employee the least embarrassment possible under the circumstances. The employee might be allowed to remove personal effects from their office or desk during lunch or after regular hours. If possible, the employee should be accompanied by a company officer or supervisor and not a security guard.
An outline for possible exit interview questions is set out below. Every subject may not be appropriate, but the checklist can be reviewed to see what is appropriate.
CHECKLIST FOR EXIT INTERVIEWS
Interview employee's supervisor:
What specific trade secrets or proprietary confidential information did the employee have access to?
Are there any documents, notes, equipment, notebook computers, etc., that the employee has not returned?
Is the employee working on a project that requires his or her continued employment or consultations
Has the employee resigned to accept employment with a competitor? (See more related questions below.)
Will the employee's resignation cause any harm to the company?
What projects did the employee work on?
Did any previous projects involve working with a competitors before resignation?
What was the attitude of the employee?
Was the employee taking home more work than usual?
Did the employee request to take any documents home?
Did the employee use copy machines more than usual?
Did the employee work evenings, weekends, or other times when other employees weren't present?
Did the employee begin to associate more with certain employees than others? (This may point to other potential defections.)
Ascertain why employee is leaving:
If the employee has received another offer:
From whom did he or she receive the offer?
How did the employee receive the offer?
Is the employee aware of offers made to other employees?
What will the employee's new job description entail?
Is the employee being hired for a specific project? (Elicit only general information so as not to violate another's trade secrets.)
Will the employee's new job put him or her in a position in which trade secrets may be disclosed? (If the employee says no, ask why not.)
Has the new employer discussed potential trade secret disclosure? What is the new employer doing to ensure non-disclosure?
If the employee is going to form a "start-up" company:
What is the nature of the "start-up"?
Has the employee discussed the "start-up" with other employees? (This is an excellent opportunity to remind the employee of his or her contractual obligation not to solicit company employees.)
Is the employee's "start-up" an appropriate venture for your company as an investment, joint venture, etc.?
If the employee is leaving because of dissatisfaction with his or her current position:
Why is he or she dissatisfied?
What changes would the employee suggest?
Are other employees dissatisfied?
What are the other employees' suggestions for change?
Will the employee be available as a consultant to finish up projects?
If the employee is leaving to take a position at a competitor:
Send the former employee a reminder regarding his/her obligations to the company.
Send new employer a letter regarding former employee's access to trade secrets of the company and new employer's contractual and legal obligations to the company.
Review original Confidentiality, Unfair Competition and Non-Disclosure Agreement for Employees, Employee Invention Assignment Agreement and Acknowledgment of Return of Property and Continuing Obligations by Terminating Employee with employee:
Impress on the employee the continuing obligation to maintain the confidentiality of the company's trade secrets.
Remind the employee that the company's trade secrets are not only written documents but may also be the employee's mental impressions.
Stress the company's need to enforce the confidentiality of trade secrets.
Have the employee sign an acknowledgment of return of property and continuing obligations by terminating employee and review it with him or her.
Have the employee sign the Notification To Employee Pursuant to Labor Code § 2870 if the employee has not previously signed the Confidentiality, Unfair Competition and Non-Disclosure Agreement for Employees which contains this notification.
Return of company property:
Explain to the employee that "company property" includes files, notes, keys, badges, business plans, customer lists, computer disks, computer files, computer programs licensed by the employer, etc.
Discuss with employee his or her computer and ask whether any company-licensed programs or files are resident on employee's home computer or personal notebook computer or other personal electronic device and ask employee to certify in writing that employee has erased the files and returned any disks with such programs or files.
If any company property, including computers, cellular phones and other electronic devices, has not yet been returned, obtain the property then or make specific arrangements for its return.
Have another employee present during the departing employee's packing of his or her former office.
Inventory the items taken by the departing employee from the office.