Employment separation and layoffs can present some unique challenges for the compliance practitioner. Employees can use layoffs to claim that they were retaliated against for a wide variety of complaints, including those for concerns that impact the compliance practitioner. Yet there are several ways that operationalization will help to protect your company as much as possible.

The reasons for these actions are to allow you to demonstrate that any laid off employee was not separated because of a hotline or whistleblower allegation but due to your overall layoff scheme. However, it could be that you may need this person to provide your compliance department additional information, to be a resource to you going forward, or even a witness that you can reasonably anticipate the government may want to interview. If any of these situations exist, if you do not plan for their eventuality before you lay off the employee, said (now) ex-employee may not be inclined to cooperate with you going forward. Also, if you do demonstrate that you are sincerely interested in a meritorious hotline complaint, it may keep this person from becoming a SEC whistleblower.

Three key takeaways:

  1. Treat departing employees with dignity.
  2. Make sure your separation documents meet SEC requirements regarding disclosures re: whistleblowing.
  3. You must check your hotline and anonymous reporting systems to make sure you do not lay off a whistleblower.