No Advance Notice Required Under At-Will Doctrine


Employers don’t have to give at-will employees in Virginia advance notice of termination, according to a June 2 ruling by the state Supreme Court.

This ruling tells employers that they just have to be clear with an employee that the working relationship has ended, said Karen Elliott, an attorney with Eckert Seamans Cherin & Mellott in Richmond, Va.

Elliott authored a friend-of-the-court brief on behalf of the Society for Human Resource Management (SHRM), the Virginia SHRM State Council and several other employer groups.

Effective Notice

When a contract doesn’t designate a specific duration, Virginia law permits either party to terminate the contract at-will upon providing “reasonable notice of his intention to do so.”

At issue in the case, however, was the meaning of “reasonable notice.”

Brenda Johnston claimed it meant “advance notice” should be given at a time before the termination. Her former employer, real estate firm William E. Wood & Associates, argued it only meant “effective notice” that the employment relationship has ended.

Agreeing with the employer, the Virginia Supreme Court said effective notice is all that is needed to make a change in the employment relationship.

Without effective notice, an employee might continue to work without collecting a paycheck or an employer may unknowingly continue to pay an employee who has quit.

Providing clear, effective notice avoids the “problem of uncompensated effort or undeserved compensation,” according to the court.

‘Advance Notice’ Deemed Too Vague

Requiring advance notice at some point in time prior to the termination would create uncertainty for employers and employees alike, the court said.

Johnston argued that immediate termination may be appropriate in some circumstances but what is a reasonable time would vary depending on the particular employment situation.

SHRM argued that to rule in Johnston’s favor “would turn the timing of every employment termination decision into a jury question.”

The court agreed that this would create confusion as to how much advance notice is reasonable in any given situation.

“Were we to adopt this amorphous standard, every employer would have to gauge what is reasonable advance notice under the circumstances, and if the employer guesses wrong, face the prospect of an expensive trial with an uncertain outcome,” the court said.

“This ruling removes a lot of the uncertainty concerning routine termination issues for employers in Virginia,” said Brian Muse, an attorney with LeClairRyan in Williamsburg, Va. Muse represented the employer in this case.

Review Your Policies

Employers should review their offer letters, handbooks and arbitration agreements to make sure these documents haven’t invalidated the at-will employment arrangement, Elliott said. “An employee may argue, if you are requiring two weeks’ notice, that you may have changed the at-will relationship,” she said.

The court’s decision in this case emphasizes that “there’s no notification required under the at-will rule” for either party ending a working relationship, Elliott said.

Employers should make sure they understand the ruling is limited to the at-will doctrine, she said. They still have to comply with requirements under the Americans with Disabilities Act and other employment laws that may apply to their organizations, she said.

What It Means for Other States

Although the ruling applies only in Virginia, Muse said it may have positive implications for HR professionals in other states.

“Many other states use language that is similar to Virginia’s employment-at-will language,” he said. “But in most states, ‘reasonable notice’ hasn’t been defined.”

“Even if Virginia law isn’t binding on other states, having a recent decision that clarifies this issue is a positive for HR professionals” nationwide, Muse said. “It’s something they can point to as persuasive authority.”

The decision is Johnston v. William E. Wood & Assocs. Inc., Va., No. 151160 (June 2).​


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