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Top four tech tips for terminations

Image: Idea go | FreeDigitalPhotos.net

Image: Idea go | FreeDigitalPhotos.net

As technology continues to overhaul the workplace and drive change, what remains the same is the emotional uncertainty of termination. Neither the employee, nor the person tasked with conducting the termination, enjoy that awkward meeting.

Having a set checklist to pull out for each termination will help keep the off-boarding process more objective and less emotionally charged. Consistent practices around employer assets will be particularly helpful.  As BYOD has taken a firm hold in many workplaces, we increasingly field questions about what to do with both the physical and digital assets upon termination. Here are our top four tips on handling technology upon termination:

1) Passwords:  Too often one person is sole keeper of certain passwords and user access information, such as the company LinkedIn page or Twitter account.  If that person is terminated, he or she can now hold the passwords hostage, with no practical recourse from the employer, other than via the general settlement negotiations.  Severance package negotiations can often take weeks – and much more if litigation ensues – so obtaining those passwords in the actual termination meeting is critical.  More effective, of course, is to ensure that more than one person has access to key passwords in the first place.

2) LinkedIn updates: If the employee is a key voice of the company or a salesperson that is client facing, HR will want to discuss the timeline to update the employee’s LinkedIn page right away to ensure clients are redirected back to the company.  It is, however, difficult to enforce given that the LinkedIn contract is between the employee and a third party.  Having provisions in the employment contract is ideal, but highly unlikely for longer term employees.  The bottom line is that an employee cannot misrepresent the company for which he or she works/worked and should be reminded of his or her obligations early in the termination process.

3) Preserve company digital communications and documents:  Just prior to termination, it is always a good practice to capture that part of the company server to which the employee would have access.  As company increasingly roll out enterprise IM systems (e.g. Yammer, Slack), the capture needs to include both regular email, as well as any other platform on which the employee may have participated.  While the vast majority of terminations settle in some manner, for the few that do not, email and chat communications will typically comprise of a large and important component of evidence.

4) Who gets the cellphone, phone number and content on that phone?  I’ve blogged about this before, and the short answer is that it is rarely worth fighting over the physical asset, but the phone number and content on the device could be critical to keep (or negotiate about if there is no contractual clarity) if the employee is a salesperson, key client facing employee, or developer of key company content.  Policies, provisions in the employment contract, and consistent off-boarding practices will each strengthen the employer’s position around cell phone physical and digital ownership.

Technology will continue to impact the workplace in unforeseen ways, forcing HR to stay on their toes during the termination process in the face of technology not yet on the radar when the original employment contracts were drafted.

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Lisa Stam

Employment & Labour Lawyer at Koldorf Stam LLP
Lisa Stam is a founding partner of the employment law firm Koldorf Stam LLP. She practices all aspects of employment, labour, privacy, and human rights, with a particular interest in technology in the workplace issues. In addition to the day to day workplace issues from hiring to firing, Lisa frequently speaks on and advises clients about the impact, risks and opportunities of social media, technology and privacy issues in the workplace. Lisa spent 3 years in union-side boutiques and 7 years at one of the largest global law firms advising global employers. She co-founded the law firm Koldorf Stam LLP in March 2014. Read more here.
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