How Should Employers Handle a Two Week Notice?


Hello everyone. Paul Simon with the law firm of Simon Paschal. Welcome to another episode of Simon Paschal says. Today we’re going to talk about notice separation. So either an employee given notice that they’re quitting, or an employer giving notice that we’re terminating the employee’s employment. This is something that everyone hears, two weeks notice is a common term and period of notice. And so we really want to dive into what does the law require and what should employers do.

So from a high level, there’s no law that says an employee needs to give notice or an employer needs to give notice. The only exceptions to this would generally be a warned layoff. So if you’re laying off a mass amount of employees, there’s some notice requirements that you need to provide as an employer. Or if contractually, if you’re a labor union, you may have some requirements.

And then if the two parties enter into an employment agreement, oftentimes in the employment agreement, there may be something that says an employee must give notice, or an employer must give notice if they’re terminating without cause. So let’s talk more about contractually, what that means, if in your employment agreement you provide some sort of notice requirement.

Unfortunately, if an employee has an employment agreement that says they must give 30 days notice and they just simply walk out on you, you generally, while you technically have a breach of contract, there’s no damage there. You look at it in the sense of had the employee given the 30 days notice, you would still have to be paying them for that time that they’re there. And so the courts generally are going to find that there’s not really any sort of harm suffered.

So why put that in there? Generally it’s to, one, you hope that employees will just abide by what the parties agreed to do. But two, you should also in that employment agreement, when you put in the 30 day notice, two week notice, whatever you want to put, have some teeth in there that says if you fail to do this, here’s what’s going to happen.

You could say that you will not get paid your PTO or vacation if you fail to give notice and work during that notice period. You know, those are types of things that you could do. You could say that you’re not going to be eligible for rehire. Some of those non-monetary things that you can hope to use as an enticement for the employee to actually give you the notice and to work during that notice period.

Now conversely, let’s say the employee actually gives the two week notice. What are the employers obligations? The employer does not need to allow the employee to work during the notice period. If the employer wants to simply say, we are going to terminate you, the employer could pay the two weeks notice if they wish. If they don’t pay the notice period, the employee will be eligible to collect unemployment during that period of time.

So let’s say it’s a 30 day notice. The employee gives a 30 day notice, the employer immediately walks the employee out the door and says, we’re not going to pay you for that 30 days. The Texas Workforce Commission, when the employee files for unemployment, will say that even though the employee quit, they were willing to work for that 30 days and the employer effectively terminated them for that 30 day period. And so during those 30 days, the employee would be eligible for employment.

So just something to consider whether or not you want to accept the notice and allow them to finish out that notice period, pay them for the notice period and not have them work, or simply accept the notice, terminate them, and allow them to collect unemployment. Those are your options as an employer.

So that’s our tip of the day. Tune in next week and we look forward to seeing you. Thank you.

 

 

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