Resignations

HR Magazine, April, 1999 by Paul Falcone

Handling employees who give notice

Picture this: An employee walks into your off, ice and gives you two weeks notice. No problem under most circumstances, right? Normally, there's little more to do than wish the individual well and run an ad in next Sunday's paper.

On the other hand, what if the individual refuses to give you a final termination date? What if she offers only verbal notice of resignation and you fear that she might change her mind before the two weeks are up? What if you prefer that she leave today, rather than in two weeks? And what if you allow an employee that you plan to fire to "resign by mutual consent" to let her save face? There are effective ways to approach all these scenarios.

Refusal to Commit to a Final Date

It's not uncommon to receive an oral notice of resignation plans. Employees have been known to nonchalantly mention that they're planning on leaving "in the near future," but further comment on their plans is not forthcoming. Sometimes, an employee will give notice that she's planning on resigning three months from now, which just happens to coincide with the date she's getting married.

How do you commit departing employees to a fixed resignation date that meets your organization's needs? Remember, once employees put you on notice of their plans to leave your company, you have a legitimate business need to question their intentions and confirm time lines. After all, you're not mandated to employ an unexceptional worker who's "buying time" by remaining employed while planning a wedding or finishing a master's degree.

With calendar in hand, call the employee into your office in private. Ensure that the individual's comment was made in earnest and was not just a passing thought. Tell the employee that setting a specific date will help you with your staff planning needs and will ensure continuity in operations once she's gone. Then work together using the calendar to allow the employee to determine a final resignation date.

Obviously, you should be wary of discharging someone who merely mentions retiring. Workers age 40 or older are protected by the Age Discrimination in Employment Act (ADEA), and you have an obligation of good faith and fair dealing with your workforce. For example, you can't lawfully discharge long-term employees just before they are due to receive anticipated financial benefits (such as pension awards). Attempting to accelerate a termination because of an ambiguous comment, such as "I'm planning on retiring at the end of the year," is begging for trouble.

On the other hand, the underperforming employee who gives three months' notice that she's leaving may not be doing you much of a favor. Under normal circumstances, employees keep such matters private until two weeks (or a reasonable time period) before they plan to leave. Problematic performers who give three months' notice often do it less for the purpose of informing you in advance than they do for personal needs, such as finding another job before leaving.

In such cases, simply thank the individual for her 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. She'll be free to leave at that time and will be compensated for her work through that date.

Sending the Employee Home Today

Of course, if you, rather than the employee, determine the date that an employee is to leave your organization, you may be designated as the "moving party," according to the Labor Department's definition. If that's the case, then technically you will have transformed her "resignation" into a "discharge," and the individual may be entitled to unemployment insurance benefits (unless you can prove misconduct). Still, that's a small price to pay for keeping control of your business operations and staff planning.

Remember, though, you'll need to rely on a well-established "employment-at-will" policy to convert a resignation to a discharge. Employment at will, recognized by most states, gives employers the right to end a worker's employment at any time, with or without notice, and with or without just cause. Without a clearly defined employment-at-will working relationship (typically established by stating employment-at-will policies in employee handbooks, employment applications and offer letters), you may make your organization vulnerable to a wrongful discharge claim.

If your company is located in a state that doesn't recognize the employment-at-will working relationship, or if your company philosophy generally is not to rely on employment at will, then proceed differently. You'll probably be better off either allowing employees to work through their resignation periods or paying them out for that period of time.

Sending resigning employees home that same day without paying them through their notice period could be viewed as a wrongful discharge 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 functions as a cheap insurance policy to ward off aggressive plaintiff attorneys looking for unlawful motives in your employment practices.