Discipline & Separation

By making the decision match the file. Before anyone is told, we read the personnel record for three things: the written policy, the warnings actually issued and the dates of any protected activity, such as a leave request or a complaint, set against the date of the decision. A stated reason the file does not already support is changed, or the decision waits until it does. The manager's script, the final-pay calculation and the separation agreement are then settled before the meeting, so nothing is improvised in the room.

Two layers. Federal law restricts the reasons: Title VII, the ADA and the ADEA bar decisions based on protected traits, the FMLA and the NLRA protect leave and concerted activity, and the WARN Act adds 60 days' notice when a layoff is large enough. Illinois law governs the mechanics of leaving: the Wage Payment and Collection Act makes final pay and earned vacation due by the next regular payday, the Personnel Record Review Act gives a former employee a year to demand the file, and the Workplace Transparency Act sets conditions on confidentiality in a separation agreement. The Human Rights Act, which covers employers of one, sits over all of it.

It is a contract that trades severance the employee is not otherwise owed for a release of claims and, usually, promises about confidentiality, non-disparagement and the return of property. Use one whenever the departure carries claim risk, which means most terminations of long-tenured employees, anyone aged 40 or over and anyone who has complained about something. The consideration has to be new: paying out accrued vacation or the final paycheck buys no release. For an employee aged 40 or over the agreement must name the Age Discrimination in Employment Act and advise in writing that a lawyer be consulted. It must also allow 21 days to consider and 7 to revoke, and in Illinois a confidentiality clause covering harassment or discrimination allegations triggers the same periods for everyone.

Sometimes, and the counting is the work. Federal WARN covers employers of 100 or more full-time employees and requires 60 days' written notice of a plant closing that costs 50 or more jobs at one site, or a mass layoff of 500, or of 50 to 499 if that is a third of the site. Separations within any 90-day window are aggregated, so two smaller rounds can add up to one covered one. Illinois WARN starts at 75 full-time employees and treats 25 layoffs as a mass layoff when they are a third of the site. Notice goes to the employees, the state dislocated-worker unit and the chief elected official of the local government, and the penalty for skipping it is back pay for up to 60 days per person.

Contemporaneously, specifically and in the file. A warning dated the day of the conduct, describing what was done and which rule it broke, is worth more than a year of recollection. It should be acknowledged by the employee, or the refusal to sign noted by a witness, and placed in the personnel file rather than a manager's drawer. Illinois law lets the employee see that file within seven working days of asking and can bar the employer from using in a later proceeding a record that should have been in it. Two patterns read badly later: a flawless review history that ends in a sudden dismissal, and a warning written the week a complaint was made.

Yes, provided the severance is something the employee was not already owed and the release observes the rules for the claims it covers. For an employee aged 40 or over the Older Workers Benefit Protection Act requires plain language and an express reference to age claims, with written advice to consult a lawyer. It also requires 21 days to consider and 7 to revoke, or 45 days in a group program, where the agreement must disclose the job titles and ages of those selected and not selected. Nothing can waive the right to file an EEOC charge, unemployment benefits or claims that have not yet arisen. We draft those carve-outs expressly, because a release that overreaches is itself an exhibit.