Viewpoint: 3 Unexpected Challenges When Employees Give Notice

 

By Paul Falcone November 13, 2018
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​Joan is an operations manager who is faced with a dilemma: how to handle a problematic employee who is "quasi" tendering his notice. When Joan first learns from the individual that he's contemplating leaving the organization, her initial response is to (quietly) jump for joy! Hank has been a thorn in her side since she began two years ago: A long-tenured technician, he resents being managed by a woman, has an entitlement mentality and resists change at every turn. He's not considered a good team player, and his co-workers walk on eggshells for fear of upsetting him. There's a catch, though: He's not making a firm commitment to a resignation date.

Mishandling resignations can pose unique problems, especially for a worker who may be overtly litigious. After all, Hank is a long-term worker, protected in multiple categories, who has made comments about suing "the heck out of this place" in the past. Joan wisely partners with HR to navigate a resignation that may take some unforeseen turns along the way.

Employees give notice all the time. Generally, there's not much to it: They hand over a letter of resignation and offer two weeks of continued service, out of courtesy and tradition, so that you have some lead time to find a replacement. In fact, there's usually little more to do than thank the individual for his service and prepare your strategy for backfilling the position and distributing his workload to the remaining team members until a replacement is identified.

But what if Hank says he is quitting but doesn't provide a final termination date? What if he has done this before, and you're afraid he's going to change his mind again within the two-week notice period? Likewise, what if you prefer that this resigning employee leave immediately rather than in two weeks? As you can see, the exit process can get a bit hairy depending on the circumstances, so let's address these not-uncommon scenarios to guide you through the maze.

1. Failure to Commit to a Final Separation Date

"First, if someone refuses to commit to a final separation date, that's not OK and shouldn't be permitted," said Nicole Golob Minkow, partner with Pearlman, Brown & Wax LLP in Encino, Calif. "They can't just walk in and tell you they're leaving without telling you when, and you shouldn't allow that to become an active practice in any event." 

Bear in mind that, once an employee places you on notice of his intentions to leave the organization, you have a legitimate business need to find out logistical details and confirm timelines. The solution? Sit down with the employee in private and inform him that setting a specific date will help you plan for a successful transition. Pull out a calendar and determine together what the appropriate separation date will be so that it suits your needs organizationally.

"Likewise, if an individual graciously offers 90 days' notice, simply thank him for the generous offer of three months but let him know that you plan on following the company's policy and past practice of accepting two weeks' notice. He'll be free to leave at that time and will be compensated for his work through that end date," Minkow said.

2. Failure to Commit the Resignation Notice to Writing

On the other hand, if an employee does not resign in writing and you suspect that he may change his mind or otherwise start playing games, you have every right to confirm his verbal resignation in writing. A simple e-mail or note might read something like this:

Hank, I have accepted your verbal resignation today, Jan. 30, 2019, and that means that Feb. 15 will be your last day with our company. You will be relieved of your duties on that day, and I will appreciate your cooperation over the next two weeks in reassigning your current workload and helping with the job posting. Thank you for your contribution to our company over the past 12 years, and I wish you well in your future career endeavors.

Your written confirmation will serve as a proxy for your earlier conversation, and it will make it more difficult for Hank to change his mind one week later and attempt to rescind his resignation.

But what if he does? Does he have a right to insist that you retain him before the two-week notice period runs out? 

"It depends," said Henry Farber, partner at Davis Write Tremaine LLP in Bellevue, Wash. "You have the right, as an employer, to rely on the individual's resignation in good faith and end his employment on the agreed-upon date. But in order to enforce the resignation, you must tell the employee that you accept the resignation and then act in reliance on the agreed-upon date."

For example, if you promote someone internally into Hank's role or hire an external candidate in that two-week notice period, then you can demonstrate that you acted in reliance on Hank's resignation and can deny his request to rescind his resignation.

"However, if you haven't truly taken any action in reliance upon Hank's resignation by posting his job, reassigning his work duties or interviewing candidates, for example, then the employee may very well be free to rescind his resignation during the notice period," Farber said. Or so his lawyer will argue, stating that your refusal to give him his job back—when you did nothing to act on his notice—amounts to nothing shy of wrongful termination.

The lesson? When a problematic and under-performing employee tenders his notice, don't start dancing in the aisle too quickly. Instead, fill the position as quickly as possible or at least be able to demonstrate that you acted in good faith by posting the job, redistributing the workload and beginning the interview process. You'll have a much greater chance of warding off a wrongful termination claim if you can demonstrate that you did something in that two-week notice period.

3. Asking the Resigning Employee to Leave Now

Then again, if you're in a situation where you want to send the employee home today rather than in two weeks, you have every right to do so. (This happens often with sales people, especially when they're going directly to a competitor.)  However, it will likely make more sense for you to pay out the two-week notice period. Consider it a cheap insurance policy because if you, rather than the employee, determine the date that the worker is to leave your company (for example, today rather than two weeks from now), you may be deemed the "moving party" under the Labor Department's definition. If that's the case, then technically you may inadvertently transform the "resignation" into a "discharge," and the individual may be entitled to unemployment insurance benefits.

Further, sending resigning employees home the same day without paying them through their notice period could be viewed as a wrongful termination if your employee handbook states that you expect all terminating employees to provide your company with two weeks' notice. In such cases, the extra two weeks of pay serves to ward off any potential wrongful termination claims because the employee set the end date.

No, handling resignations doesn't usually get this tricky. But far too many unsuspecting employers believe they have the right to send someone home the day they resign without paying them through the notice period or insisting that they can't rescind their resignations under any circumstances. Joan admitted that she didn't see any of this coming, and she was sure glad she had a partner in HR to walk her through the unforeseen challenges that came her way in Hank's unique situation.

Paul Falcone (www.PaulFalconeHR.com) is vice president of HR at the Motion Picture & Television Fund in Woodland Hills, Calif. Some of his best-selling books include 101 Sample Write-Ups for Documenting Employee Performance Problems, 96 Great Interview Questions to Ask Before You Hire, 101 Tough Conversations to Have with Employees and 2600 Phrases for Effective Performance Reviews. 


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