Handling Employees Who Quit—Then Change Their Minds

 

By Paul Falcone December 3, 2019
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​Employees give notice all the time, right? There's not much to it: They walk in, 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. Granted, usually there's little more to do than thank the person for their service and prepare your strategy for backfilling the position and distributing the individual's work to the remaining team members until a replacement can be identified.

But what if an employee who has had ongoing conduct problems quits but refuses to provide a final termination date? What if she offers verbal notice but she's done this before, and now you're afraid she's going to change her mind again within the two-week notice period? Would you rather the employee leave immediately rather than in two weeks?

As you can see, the exit process can get a bit hairy depending on the circumstances. Let's address these not-so-uncommon scenarios.

Failure to Commit to a Firm Separation Date

First, if someone refuses to commit to a final separation date, that's not OK. She can't just walk in and tell you she's leaving without telling you when. Likewise, someone may walk into your office and tender notice 90 days from now (which just happens to coincide with the date she's getting married). Are you obligated to keep her through her wedding date?

"Once an employee places you on notice of her intention to leave the organization, you have a legitimate business need to question her exit plan and confirm timelines," said Richard Falcone, employment attorney and shareholder at Littler in Irvine, Calif. "After all, you're not obligated to employ an unexceptional worker who's buying time by remaining employed while she's waiting to get married, finish a bachelor's degree or [fulfill] any other personal obligation she may have." Call the individual into your office and tell her that setting a specific date will help you plan for a successful transition. Pull out the calendar and determine together an appropriate end date that suits your needs.

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

Sending the Employee Home on the Day Notice Is Given

If you're in a situation where you'd rather send the employee home the day she gives notice rather than in two weeks, you have every right to do so. This happens often with salespeople, especially when they're going to a competitor.

"However, in those circumstances," said Jeff Nowak, employment attorney and shareholder at Littler in Chicago, "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, "you may have inadvertently transformed 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 function as insurance to ward off any potential wrongful termination claims."

On the other hand, if an employee refuses to resign in writing and you suspect she may change her mind or otherwise appear to be playing games, you have every right to confirm her verbal resignation in writing. A simple e-mail or note might read something like this:

Laura, I have accepted your verbal resignation today, Jan. 30, and that means 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 two years, and I wish you well as you move forward and excel in your career.

Your written confirmation will serve as a proxy for hers, and it will make it more difficult for Laura to change her mind one week later and attempt to keep her job.

Acting in Reliance on the Resignation Notice

What about the employee who gives notice and then changes her mind? Does she have a right to insist that you retain her before her two-week notice period runs out?

"It depends," Falcone said. "You have the right, as an employer, to rely on the individual's resignation in good faith and end her employment on the agreed upon date. But how you act in reliance on the notice becomes a key issue. Specifically, if you haven't truly taken action in reliance upon her resignation by posting her job, reassigning her work duties and interviewing candidates, for example, then the employee may very well be free to rescind her resignation during the notice period."

The lesson? When a problematic and underperforming employee tenders her notice, fill the position as quickly as possible, or at least demonstrate that you acted in good faith in reliance on her resignation notice by posting the job, redistributing her work and beginning interviews. You'll have a much greater chance of warding off a wrongful termination claim if you can show that you acted on her notice rather than simply accepting the resignation letter and filing it away.

Paul Falcone (www.PaulFalconeHR.com) is CHRO at the Motion Picture & Television Fund in Woodland Hills, Calif., and author of 101 Tough Conversations to Have with Employees: A Manager's Guide to Addressing Performance, Conduct, and Discipline Challenges (HarperCollins Leadership, 2019).

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