Discipline & Discharge

To Terminate Or Not Terminate, That Is The Question.

Whether selling, acquiring, or restructuring a business, the complex issue of employment relationships and what to do with them should be considered as early in the process as possible. There are often sound business and legal reasons, affecting all sides of a deal/restructure, for the selling entity to formally terminate employment relationships with its employees prior to the close of a transaction. This is true even where the parties anticipate that the universe of the seller’s employees will seamlessly commence employment with the acquiring entity. On the other hand, there are also competing and equally compelling reasons not to terminate those relationships, making the risks of doing so “not worth it.”

Terminating the employment of a seller’s employees can mitigate risks of exposure to liability for employment-related claims and provide a bright-line date of termination from employment by one entity before employment commences with another entity. This is particularly beneficial if the subsequent employment will likely be with the entity acquiring the business, and the seller’s former employees will continue to work in the same facility post-acquisition, performing the same functions, using the same equipment and reporting to the same management. A formal and clearly documented employment termination protects both the seller and the buyer.

On the other hand, the costs of terminating employment relationships can be significant. At termination, employees must be paid all wages owed, accrued vacation time, and potentially severance pay. These costs may render employment separation unattractive. In addition, there are practical implications of employment separation that can complicate the buyer’s transition and create unwanted delays in setting up operations, payroll, and benefits. A seller may also decide not to terminate its employees in the interest of maintaining confidentiality about the transaction and avoiding uncertainty about retaining the necessary personnel to promote a smooth transition in ownership.

On March 20, 2023, following an eight-game suspension, Memphis Grizzlies’ two-time All-Star point guard, Ja Morant, returned to play in a NBA basketball game against the Houston Rockets. Grizzlies’ fans welcomed back Morant with cheers and a standing ovation when Morant came off the bench after missing a total of

Last month, the National Labor Relations Board issued an important decision (McLaren Macomb, 372 NLRB No. 58 (2023) regarding the inclusion of certain common provisions in severance and separation agreements. You can read the 02/21/23 decision on the NLRB’s site here.

“Quiet quitting” is the newest coined phrase that has burst onto the workplace scene. Not to be confused with the “great resignation,” quiet quitting is commonly understood to mean employees intentionally prioritizing the minimum requirements of their job and nothing more. 

When employees are arrested during their off-duty time and away from work, employers may need to make difficult choices balancing their various obligations. Among these are respecting the rights of arrested employees, ensuring the safety of workforces and workplaces, maintaining the continuity of business operations, and preserving brand integrity and

Dear Littler: We are a multi-state employer that allowed a large percentage of our employees to work remotely during the pandemic. To help facilitate the transition to home offices, we provided our remote workers with office equipment, cell phones, laptops, monitors—you name it. Some of these employees have now

On February 1, 2022, Tampa Bay Buccaneers quarterback Tom Brady officially announced his retirement via Instagram. The word “officially” is key here, as news of Brady’s retirement initially leaked to the media a few days before, apparently causing Brady, the second-best quarterback of all time, much consternation. Suffice it

By: Investigating Employee Misconduct In The Age of “Cancel Culture”

What is “cancel culture”?

During the last few years, there has been a groundswell of cultural movements seeking to rectify transgressions against traditionally marginalized groups, including women, Black people, members of the LBGTQ community, and Asian-Americans/Pacific Islanders.  These movements have largely

In a recent employee termination case, the Third Circuit Court of Appeals recently upheld the dismissal of race discrimination claims by a bank employee who was terminated due to a social media post.

Plaintiff, a Caucasian woman, was employed as a project manager in her employer’s wealth management department.  In

While employers are beginning the process of returning administrative staff to offices, COVID-19 workplace safety precautions remain a priority. Many administrative employees are exempt from the overtime requirements of the Fair Labor Standards Act, which prompts employer concerns about whether or not they may issue disciplinary suspensions to exempt employees

Within days of the January 6, 2021, riot at the U.S. Capitol, employees who were observed as part of the mob entering the Capitol were discharged by their employers. Some of the individuals involved in the events at the Capitol were knowingly filmed as part of the insurrection (and many

Executive Summary: In the wake of the January 6, 2021, unrest at the United States Capitol Building and several social media outlets suspending President Trump’s accounts, free speech is a hot topic. Although the right to free speech is ingrained into American life, free speech is not absolute. The Constitutional right to free speech is not implicated by the actions of these private social media platforms because they are private entities, not arms of the government. Moreover, the First Amendment does not protect certain speech intended to incite or produce violence and lawless action.

Codes of Conduct are designed to set forth an organization’s values and principles, while detailing expectations for employees. In many ways, it is one of the most important documents an organization can develop. At times, when an employer decides it needs to develop a Code, it often asks counsel whether there is a sample Code or boilerplate language the company can adopt. But is an “off-the-shelf” Code of Conduct really of any value to an organization? The answer should be apparent – sufficient consideration should be devoted to a task that the organization will say this is the standard by which our business will operate!

Dear Littler: I work for a prominent company in a small city here in the Hoosier State, and we are very involved in our local community. We sponsor a corporate softball team, and last night one of our team members “took a knee” during the national anthem before a game. His supervisor asked if the player can be disciplined for this conduct or at least transferred out of the supervisor’s department. I understand the supervisor’s frustration, but I don’t know how to react. Can we do that? I just can’t believe we have to deal with this situation.

Following recent events in Charlottesville, Virginia involving a “Unite the Right” rally organized by multiple white nationalist groups protesting the removal of a statue of Robert E. Lee, which turned violent and ended in the tragic deaths of a counter-protestor and two police officers monitoring the situation, a large social media campaign has been undertaken in order to identify the protestors and encourage their employers to terminate their employment. Groups identified as having ties to the Unite the Right rally include members of the Ku Klux Klan, as well as other white supremacist and white nationalist groups, neo-Nazis, skinheads, and the “alt-right.”