1006 HR Magazine: HR Solutions

By Naomi Cossack, Margaret R. Fiester and John Sweeney Oct 1, 2006

HR Magazine, October 2006

Prompted Resignation, Surveillance, Confidentiality

Q: We have an employee we want to terminate. We'd like to offer the employee an opportunity to resign in lieu of being terminated. What should we consider before making this decision?

A: An employer might want to let an employee exit with a greater degree of dignity by allowing voluntary resignation instead of discharging the employee. However, this option is appropriate only when no gross misconduct or violation of a major company policy is involved and when the employee is being terminated solely because of failure to meet performance or productivity standards.

The resignation option should be planned carefully to avoid potential liability issues. A court might view a voluntary resignation as prompted and subject to the same standards of the constructive discharge or wrongful termination doctrine.

To minimize the risk of a prompted resignation being challenged, the employer should consider having the resignation offer accompanied by a termination agreement/release and some type of severance package; in exchange for being permitted to resign voluntarily, the employee would agree to not pursue any future legal action.

Generally, if an employer treats voluntary resignations in lieu of terminations in the same manner as all other discharges (for example, with documented performance improvement plans, etc.), there should be no greater risk to the employer in letting an employee resign.

A termination agreement is most likely to be successful when the employee is completely aware that the company is not satisfied with performance or productivity and when the possibility of termination is not entirely unexpected.

Last, employers pursuing this option also will need to plan ahead regarding how they will handle future reference-checking inquiries from other potential employers.

It is highly advisable to seek the assistance of legal counsel before making any decisions relating to termination of employees.

Q: Can we use video surveillance to monitor our employees?

A: The short answer is yesin certain situations; however, there are several issues that employers should consider before implementing such a practice.

Concerns about workplace privacy are becoming more widespread as electronic monitoring becomes more prevalent. It is easy to purchase and install a video camera, and there's wide agreement that it is appropriate to install security cameras in stairwells and parking garages. However, most would argue that it is not appropriate to install cameras in areas such as bathrooms, dressing rooms and locker rooms.

Many employers argue that there are compelling business reasons to use video cameras to monitor their employees, such as to help deter theft and other inappropriate behavior. Courts generally perceive an employer's videotaping of open and public work areas as a logical and lawful extension of activities that could be seen by a supervisor. But if an employer targets a camera on one workstation, for example, a court may find the use of such selective surveillance to be overly intrusive.

Many states have provisions that limit or prohibit video surveillance. And employers of union workers may be required to bargain with the union to implement video surveillance.

In addition, unnecessary monitoring can create poor employee morale. Furthermore, employers that target certain employees or groups of employees for monitoring may expose themselves to discrimination claims.

Consider the following tips:

  • Keep videotape machinery and materials in a safe and confidential place.
  • In all areas where videotaping is allowed, post a notice that video monitoring is in use. This is designed to reduce employees' expectations of privacy.
  • Bear in mind that many states do not allow the use of accompanying audio with video surveillance.
  • Require all employees to sign a written acknowledgment that they have read and understand the policy and that they agree to abide by its terms.

Q: Why is confidentiality critical to the human resource function?

A: Every organization has a need to keep certain information confidential. HR typically is entrusted with maintaining sensitive employee data and information relating to employee and management issues, and such information should be confined to those with a need to know. As a result, confidentiality issues in HR are multitiered.

HR professionals know the importance of maintaining the confidentiality of sensitive employee information, and employers have standing policies on safeguarding such data. But HR also should develop its own desk procedures to orient new HR team members on the importance of maintaining the confidentiality of not only information they possess because of their jobs but also information to which they have access.

Such information to which HR may be privy could include discussions with senior management about business strategies and processes, layoffs and plant closings, and proprietary data. Other matters that require confidentiality could include major expansions or greenfield operation start-ups that have not been formally announced.

Although an employer may not have an articulated policy on keeping such matters confidential, the organization's culture may have nurtured a consensus understanding of the importance of not disseminating such information.

The level of confidentiality can become less certain with investigations or discipline.

From the HR perspective, each situation needs to be considered in light of the nature of the complaint and the possible damage to the organization if it's kept under an assured confidentiality seal; HR must determine whether confidentiality can be maintained or whether information must be shared in order to protect the organization. Many of the issues that fall into this category are articulated generally under an organization's ethics policy or code of conduct processes.

Periodic confidentiality training reinforces the importance of properly handling sensitive information and data and will serve to ensure an HR organization's credibility and operational integrity.

Naomi Cossack, SPHR, is the manager of online content in the Society for Human Resource Management's Information Center. Margaret R. Fiester, SPHR, and John Sweeney, GPHR, are information specialists in the center.

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