From the Hotline: Impending Retirement and Performance Issues

Question: A long-term employee is retiring next month and has just begun having performance issues. When we addressed them with him, he became hostile and abusive, alleging various forms of discrimination during his tenure with us. What should we do?

Answer: Considering the actions that have taken place, you have two sensitive issues to address: (1) whether or not to allow this employee to continue working through his retirement notice date; and (2) how to handle the discrimination and harassment allegations. What follows are our recommendations to manage both situations, and we strongly encourage you to consult with your legal counsel prior to taking action.

Allegations of Discrimination and Harassment

Follow up on his statements and do not take them lightly. Let him know that your company does not condone harassment and will thoroughly investigate his concerns.

      • Ask him to put his charges in writing and be as specific as possible as to what happened, who was involved, any witnesses to the event, and why he felt it was harassing, discriminatory, or created a hostile work environment.
      • Ensure him that you (or whoever handles investigations) will conduct an immediate investigation, follow up with witnesses, and interview all individuals involved to resolve the issues for all involved.
      • If the employee is reluctant to provide more specifics, tell him that the only way the company can correct any deficiencies is to understand the entire set of facts.
      • If he chooses not to provide more details and offers that these were comments made in the heat of the discussion, then ask him to document that in writing.
      • Conduct your investigation, document all statements, and take action based on your findings.

Work Performance

You will have the best understanding of the severity of the recent errors the employee made and whether the employee understands the mistakes and will discontinue making them. In addition, you are in the best position to assess his state of mind for the remainder of his notice period until the actual retirement date. You will want to determine if it would be detrimental to your business from an employee relations or customer service perspective to allow this employee to continue working in his current frame of mind. You can also assess whether the errors he made on the job and his hostile behavior would constitute immediate termination of employment under your company policy.

If you determine that immediate termination of employment is necessary, please consult legal counsel first.  Your attorney will take into account your company rules, the employee’s actions, his long tenure, and his stated intent to retire soon to help you determine whether to terminate now or follow the original plan for termination at the retirement date.

If you determine that it would not be in the company’s best interest to allow this employee to continue to work, you could consider paying the employee through the retirement termination date, providing any retirement benefits post-termination, and releasing the employee immediately based on recent behavior. This could help minimize claims for discrimination or retaliation. Review your existing policies that may have been violated by the employee’s behavior and consult with an attorney to determine if it would be appropriate to draft a letter to the employee upon release or via certified mail outlining the following:

    1. Appreciation for years of service
    2. Recent policy violations and reminders of any confidentiality statements or otherwise that may exist and still be relevant
    3. Return of all company equipment, material, and documents
    4. Request to refrain contact as an agent of the company with any vendors or customers, or any communication that may be perceived as slander or misrepresentation
    5. Information about his earned retirement benefits
    6. Good will in his retirement