Be clear, you still have a problem as this jobholder is likely a difficult person to manage, but this is not a case of gross misconduct. Once the meeting starts you should outline the current problem, and then allow the worker to respond. Unfortunately, employees claiming wrongful lay off are suing companies every year. For example, when you terminated him for a productivity problem or laid him off as a cost cutting move, the commission always favors the fired employee. For you to call an exercise 'downsizing', it mostly involves laying off three or more personnel. If you lay them off on the account of a firm restructuring, they will leave on better terms than if you separate them for violating business policy. And it protects you and your small business from wrongful layoff lawsuits. Even if you dismiss for an illegal reason, you can significantly cut your chance of a suit by treating the employee well during the layoff program. A disgruntled employee can exhaust not only the morale of the other personnel, but eventually the profit and efficiency of your company. Typically coworkers do not expect much from these personnel and everyone is demoralized on the account of it. The first step to avoid this situation is careful recruitment processes.

Instead of saying "you're waiving your rights under ADEA," we can state it more broadly such as: Constructive discharge or constructive termination is another common exception to employment at will. An exit interview is significantly more difficult to conduct than a job interview, or even a productivity review, because there is good chance the jobholder leaving is unhappy with you as their employer. Another consideration would be the customers or clients the separated worker may have dealt with.