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  1. Include a prominent disclaimer saying that it is not and does not constitute a contract of employment.
  3. Include a general section affirming either party's right to terminate the employment at will with or without notice and the employer's right to change the conditions of the employment at will.
    1. include a statement that no one is authorized to represent anything to the contrary, except in a formal written contract of employment signed by a designated officer
    3. require employee's to report any instances of unauthorized promises or representations
  5. Repeat the disclaimers in connection with specific issues
    1. grievance procedures--include a statement that they are subordinate to both parties' right to terminate with or without notice and with or without cause.
    3. lists of prohibited activities--affirm nonexclusivity.
    5. lists of activities that may lead to specific consequences--affirm nonexclusivity
    7. probation provisions--ending probation does not alter the at-will relationship
    9. factors that may be considered in promotions
    11. lists of paid vacations
  7. Analyze the entire manual
    1. is any of it superfluous?
    3. look for "employer shall" or "employer will." Change all the "shalls" and "wills" to "mays."
    5. look for anything that looks like a promise and take it out.
    7. look for anything that, taken in isolation, might create an expectation of tenure, modify it, and tack on a specific disclaimer.
  9. Carefully review and update the manual at least once a year.
  11. Distribute it and get an acknowledgment at least once a year.
DISCLAIMER: The foregoing document is part of an educational presentation. It is not intended as legal advice and should not be relied upon. You are advised to consult counsel before adopting any of the ideas or suggestions in this material, which may or may not be applicable to your specific situation.


April 5, 1997


Re: Conduct of Internal Investigation

Dear [client],

I thought it would be helpful if I put in writing some matters relating to the conduct of our investigation.


[The client] is conducting an internal investigation into various matters that have arisen in connection with or as a result of certain statements or acts of [subjects]. This investigation is being conducted at the direction of [officer or board of directors], under my supervision and control as legal counsel to [client], and in contemplation of possible future litigation. Accordingly, some or all of the written materials and communications related to the investigation may be protected from future disclosure to parties adverse to Intercal by attorney-client privilege, the attorney work-product rules, or both.

Communications between me and an agent of the company may be subject to attorney-client privilege. This privilege is, in some respects, narrower than work product protection. However, it is absolute: if it exists and is not waived, an adverse party cannot get the substance of the communication no matter how great its alleged need for the information. In order to avoid waiving the privilege, the privileged communication must not be disclosed to anyone other than the attorney and the client. In the case of a corporation like [the client], this means that only the corporate agents responsible for seeking advice from me--the two of you--should be privy to our communications.

Second, communications between us, like this letter, should be segregated from other material that may not be privileged or whose attorney-client privilege may later be waived, like the outline of questions that I have enclosed.

Other material that is developed in the investigation, because it is being done by me or under my supervision as [client's] lawyer, may enjoy limited protection as attorney's work product. Examples would be your notes of interviews. This information could be obtained later in litigation by order of a judge under certain circumstances.

In order to maintain these privileges, it would be helpful if you segregate any notes or other documents that you generate in the course of this investigation in a separate file. Mark each document that was prepared specifically for my review "Privileged and confidential communication for legal counsel only." Keep communications to me separate from other material, such as your notes, that may enjoy only work product protection.

We should do our best to maintain all applicable privileges. However, it is best to assume that there is some possibility that anything that you write down will eventually fall into the hands of any eventual opponents. Therefore, it is important to make records only of matters that are necessary and pertinent. Please do not record your mental impressions, guesses, opinions, conclusions, and so on.


The goal of the investigation is to conduct a fair, thorough, and expeditious investigation of all complaints made by either [of the subjects], to determine whether either of them has been guilty of any misconduct related to their relationship with [the client], and to determine any additional facts that may be relevant to your determination of what action is necessary or desirable with respect to the employment of [subject 1] or your contract with [subject 2].


In order to respect the privacy of the parties, and to ensure a timely completion of the investigation, it is important to attempt to avoid straying from issues that are relevant to these goals. In particular, we should avoid any unnecessary inquiry into anyone's religious beliefs or theories, private sexual practices or activities, or other personal business. We should make our desire to avoid unnecessary prying clear to the witnesses who are interviewed and try to keep our interviews focused on the issues. Because of the nature of the issues that have been raised, this will require tact and judgment.

You should both be present for each interview. [one person] should conduct the interview and [the other] should take careful notes, which should not be shown to anyone but [authorized persons] and myself. In order to avoid the appearance of ganging up on the interviewee, [the note taker] should not ask questions. If [the note taker] thinks of a question that should be asked, she should make a note of it and discuss it with [the questioner] during a break.

If a witness expresses a desire to leave, or declines to answer certain questions, you should tell him that, while you cannot require him to cooperate, to the extent that he does not cooperate you may be forced to make whatever decisions are necessary without the information that you are unable to obtain from him. If the witness wants to take a short break, you should of course comply. It is important to be polite and tactful, regardless of any provocation, so that the interview process itself does not become part of someone's complaint.

In an investigation like this, there is a danger of making yourself subject to a claim for defamation. Therefore, it is important not to repeat charges that may have been made against a person or unfavorable facts about him to anyone other than the person himself. If you're interviewing a witness about the possible misconduct of another person, just find out what the witness knows, don't repeat what you may have learned from another source.

The outline of questions for [the witness] that I have enclosed should not be taken as exhaustive. You will have to follow up on the answers and pursue any relevant further lines of inquiry that become apparent. When you ask about documents, show them to her, then mark the copies that you used so that we will have a record of what you showed her. In addition, after you review these questions, let me know if you have any questions, additions, or suggestions related to them. Please try to let me know ahead of time when you will be conducting each interview so that I can try to be available by telephone in case any questions or problems come up while it is going on.

I think you should probably interview [the first witness] first. Then, when I find out what she said, I can prepare an outline of questions for [the second witness]. Try to be alert to any indications of other possible witnesses who can be interviewed.

Please call me if you have any questions.

Very truly yours,

Vincent DiCarlo

DISCLAIMER: The foregoing document is part of an educational presentation. It is not intended as legal advice and should not be relied upon. You are advised to consult counsel before adopting any of the ideas or suggestions in this material, which may or may not be applicable to your specific situation.



Suggestions for Exit Interview with ---

  1. Tell --- that the company has decided to terminate his employment due to [give the actual reasons only]:
      a. unsatisfactory performance

      b. tardiness

      c. failure to follow instructions

      d. reduction in force

      e. other reasons

  3. Remind him that of your previous discussions, if any, with him concerning the problems for which he is being terminated. Tell him, if applicable, that, as a result of the lack of sufficient improvement in the relevant areas, you cannot continue his employment.
  5. Tell him that, while his termination is effective today, you are willing to offer him a severance agreement that would give him certain benefits [use whatever you are offering, e.g. additional salary and health benefits].
  7. Give him the termination letter, the severance agreement, and an extra copy of the usual COBRA notices. The COBRA notice must also be sent by mail within 14 days.
  9. Give him the booklet from the EDD concerning unemployment benefits. If you don't have this, you can get it from EDD or we can supply you with one.
  11. Listen carefully and patiently to what he has to say, especially including any complaints he may have. If he expresses disagreement with the reasons for his termination, ask him why he thinks that, and later consider what response may be appropriate, perhaps in consultation with your lawyer. Do not argue with him. Simply say that you are sorry that you do not agree with him and are surprised at any untrue statements that he may make.
  13. Ask him whether he has any documents or records belonging to the company, including lists of clients, and arrange for their return. Remind him that he has a continuing obligation to maintain the confidentiality of the company's business after his departure.
  15. Ask whether his records relating to compensation are up to date. These might include records relating to sales or leave taken. Tender him a check for all accrued compensation, including any accrued salary, leave time, vacation time, commissions, or other amounts that may be due.
Things That It Is OK To Do
  1. Express your regret that things did not work out well enough for you to continue his employment.
  3. Wish him good luck.
  5. Remind him of any efforts you made to help him to meet your requirements.
  7. Listen to any complaints he may have.
  9. Make arrangements for him to remove his personal belongings at your mutual convenience.
Things That It Is Not OK To Do
  1. Argue with him.
  3. Tell him or suggest to him in any way that he is incompetent or dishonest. This is important since such statements may form a basis for tort liability for defamation. Suggest that the amount or timing of payment for accrued compensation depends on whether he signs the severance agreement.
  5. Promise him anything not described in this outline, for example, a good recommendation or help in getting another job. Recommendations or references can be a thorny area that involves potential liability to suit, so if this comes up or someone asks for one you should consult with your lawyer about what your policy should be on the subject.
  7. Give a false reason for the termination, or deny the true reasons.

If anything unanticipated or troublesome comes up, or the employee accuses you or a fellow employee of some kind of improper behavior, such as improper discrimination or harassment, please postpone any response until you have had a chance to carefully consider the information, perhaps in consultation with your lawyer.

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DISCLAIMER: I have entered government service and, as of September 1, 2008, am no longer engaged in the private practice of law.  Therefore, this site is no longer being maintained,  may not be accurate, and should not be relied upon.  It is not now and was not ever intended as legal advice.  It is being provided for historical purposes, and for the benefit of those lawyers who are capable of independently verifying the information and judging the opinions in it, and then reaching their own conclusions.  You are strongly advised to consult qualified legal counsel before adopting any of the ideas or suggestions in this material, which may or may not be applicable in your jurisdiction or to your specific situation, and may no longer be accurate or prudent in any case.  The opinions and statements at this site were solely my own.  They were not and are not those of, nor were they nor are they made on behalf of, any agency of government or anyone else.

Coppyright 1997 Vincent DiCarlo