September 29, 2016

How to Handle an Employee Giving 2 Weeks’ Notice

Business woman is showing the document for resignation for quit the job

It’s 4:30 on a Friday afternoon, and one of your employees knocks on your door asking to come in. They’re avoiding eye contact, they’re fidgety, nervous… This can’t be good news. You imagine accidentally shredded payroll reports, stolen laptops full of patient information, or something equally catastrophic. But when the employee tells you what’s going on, it’s the last thing you expected: They’re putting in their 2 weeks’ notice. Now what do you do?

Before you can decide, you’ll need to know what your options are. In any “at-will” employment arrangement, you can let an employee go at any time for any reason that’s not unlawful (although there are factors you should consider first), and the employee can also quit at any time, with notice or not. At-will employment is the law of the land in 49 of 50 states, so we’ll assume your employee in question is probably at-will—unless you’ve done something to change that status, which we’ll discuss a bit later.

In most cases, you can do 1 of 3 things when an employee tells you they’re going to quit:

  1. Let the employee finish out their time.
  2. Send the employee home immediately.
  3. Send the employee home immediately, but continue paying them until their original quit date.

This is a decision you’ll often need to make right there on the spot, so it helps to know the pros and cons of each option beforehand.

Note:

Regardless of how you choose to handle the situation, it’s critical to document this as a resignation to help avoid any future questions about this employee’s departure.

Ask the employee to provide you with a resignation letter, or ask them to fill out a Voluntary Resignation form. If they don’t do this, you should provide them with a letter that confirms your acceptance of their resignation.

If you choose to let the employee go before their intended resignation date (Option 2 or 3 below), you can also use this letter to inform them in writing that you are accepting their resignation immediately.

Getting this documented correctly is important, and there may be additional state law requirements. If this situation comes up for you, we invite you to contact the CEDR Solution Center for assistance.

Click here to watch our free webinar on hiring difference makers for your practice.

Option #1: Let the employee finish out their time.

If you have a great relationship with the employee and there are no hard feelings over their quitting, having them continue working for a few weeks could be a godsend. You’ll have time to prepare, and the employee can help train their replacement and give a detailed explanation of their status on any projects, including advice on how to move them forward.

That time can be a double-edged sword, however. Keep in mind that even the BEST employees are liable to start “phoning it in” to some extent as they get closer and closer to their last day, so you might not be getting the same high-quality performance out of your employee during their last few weeks. Mentally, they’re already moving on.

But if you truly feel that your soon-to-be-former employee can perform well during their final weeks at your practice, letting them stay and ease the transition is a viable choice.

Option #2: Send the employee home immediately.

An employee who is working on borrowed time and no longer committed to your practice is a variable you can’t fully control, so you may feel that just removing them is the safer choice. Again, you aren’t required to let an at-will employee remain at their job for any length of time, whether they gave 2 days’ notice or 2 weeks’.

The biggest downside to letting the employee go right away is obvious: You’ll now have an unstaffed position, before you’ve been able to make plans to fill it. This is going to cause some stress among your staff, and you are likely to see office morale take a hit, at least in the short-term.

Then there’s the question of unemployment benefits. By asking an employee who gave notice to leave right away, you may, in rare circumstances, risk accidentally transforming a voluntary quit into an involuntary termination (without cause). In some states, the employee may be able to claim unemployment for those two weeks. However, generally, as long as the notice was two weeks or less, this will not trigger unemployment benefit eligibility.  Not paying wages in exchange for the courtesy of giving  the standard two weeks’ notice, however, may encourage other employees not to give you any notice next time.

Option #3: Send the employee home immediately, but pay out the two weeks.

This is sometimes your best option if you don’t want the employee to finish out their time. Perhaps you know they’ve been dissatisfied for a while, and you just don’t trust them to care about this job now that they have another one. This option may avoid further discontent: you’re paying out their time, while also limiting your risk.

You should also consider whether you have in any way altered the at-will status of your employment relationship with this employee, whether intentionally or unintentionally, as that could change your obligations. If you have an employment contract in place, you may have limited options.

Even without an employment contract, you should check your employee handbook for ways you might have inadvertently changed the employee’s at-will status. Do you state anywhere that notice before quitting is required for any reason? Unless you have very careful at-will disclaimers in place—which you should—policies like this are often viewed as an implied guarantee of employment for the length of that notice, which can also cause a loss of at-will status.

Click to download CEDR's free exit packet for employers.

What’s the final word on that final two weeks?

If you like option 2 or 3 best, double-checking on at-will status before sending an employee on their way with their notice paid out is critically important. If you let go of someone who is not at-will, even just two weeks early, you could end up dealing with a wrongful termination complaint.

And one last caution—as always, be sure to treat similarly situated employees in consistent ways. Choosing an early acceptance of resignation from only your pregnant employee (or only your black employee, or only an employee who recently requested a medical accommodation, to name just a few variations) when you’ve never done this before could be problematic, and it may even expose you to a discrimination claim.

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.

Comments

  1. AvatarJulie S says

    My employee provided his 2 weeks notice and has since called out 2 times without notifying me as his manager. After I inquired about his commitment to fulfill his 2 weeks notice he said I had no right to inquire on his whereabouts or it is considered harassment. I am still his manager and he called out for his shifts? Aren’t I still within my rights to inquire. I am upset about the level disrespect he has shown me. I have been very supportive of him as an employee. Flabbergasted at this reply. So I am not allowed to uphold policies after he resigns?

    • Avatar says

      Julie S, as long as your employee is still working for you, you are able to enforce the policies in your workplace’s handbook.

      This answer assumes that this is an at-will employee, and that you haven’t created any type of contract of employment with them. The employee isn’t off the hook from abiding by their work schedule, from abiding by policies, or from having to answer questions simply because they gave notice. It’s important that those policies be compliant with the law and that the employer is being consistent in the application of those policies.

      Note, however, that when an employee raises an issue like harassment, you need to be careful taking any sort of adverse action against this employee without first following up on the complaint. We recommend addressing the employee in the following way: “We appreciate receiving advance notice that you’re planning to leave, but we need to see that you are committed to being here each day and being part of the team. Asking about your absences isn’t intended to be harassment or to be prying into your personal life, it’s only to ensure that we can expect you to be here just as we would any other employee.” You will want to document this conversation as it may be valuable evidence for your defense, should the issue escalate.

      Finally, if the employee was taking time off under protected sick leave, you are likely prohibited by law from inquiring any further about the reasons behind the call outs.

  2. AvatarJulie says

    Hello my employee has gave me a 2 week resignation letter but I decided to terminate the next day
    Do I have to pay him the 2 weeks as we have no contract and need rules for U.K. Not us
    Many thanks
    Julie

  3. AvatarLetoya Englemon says

    The pregnant employee gives 2 weeks notice, but close to the end she goes home early only being there 2hrs. It’s a 12hr shift, what can I do?

  4. Avatar says

    Hi Letoya,

    Assuming that this is an at-will employment situation, you could accept the resignation early and have the partial day be her last day. However, this is significantly riskier than just waiting for this employee’s last two weeks to run out. First, because this employee is pregnant, it can be seen as discrimination against someone based on their pregnancy or sex. Second, it can be seen as discrimination potentially based on their disability, if it was a physical limitation that forced them to leave work early. Either or both of these could result in a lawsuit or a complaint to the EEOC.

    More to the point, it is unnecessary. Talking to the employee about better communicating her needs prior to leaving and waiting out the last two weeks would be a much safer solution with better optics to the rest of the staff and to your patients.

  5. AvatarRobin Knight says

    Employee gives 2 week notice but is sick off and on the first week.
    At what point do I determine his benefits will end? If he accrues time for every hour he works does he then leave with unpaid sick leave?

  6. AvatarRosie says

    i gave 8 weeks notice to my job and they let me go with 6 weeks still left until my resignation date. Also I never submitted an actual resignation letter it was just a verbal conversation. Can I still apply for unemployment benefits?

  7. AvatarSusan Morrow says

    Our employee used the last of all her vacation time last week and then gave 2 week notice Friday. July 4th, is a holiday for our office. It is this week, during her final 2 weeks. Are we required to pay her for the holiday?

  8. AvatarAmanda says

    I have an employee who is in a leadership position and just had her fourth child. It was her “intention” to come back to work and I never thought otherwise. After being back from maternity leave for two weeks, she put in her letter of resignation with a projected last day being 8 weeks out. I am grateful for her giving me so much time to find a replacement but it has been two weeks since she put in her letter of resignation and her attitude has changed in the fact that she is very short with everyone and walks around like she no longer really cares about causing waves within the company. I want to tell her that we would like for her last day to be in three weeks but I am entirely sure how to begin a conversation like that. Do you have any advice?

  9. Avatarrachel says

    Employee gave two weeks notice early, management didnt say anything to employee for two day. Employee messaged employer and they said they tired calling and the employee was no longer needed. can they apply for unemployment now? Kansas

  10. Avatar says

    I am. Clinical Nurse manager for a small medical practice. We have a skeleton crew each person is needed to run the functions of the practice. I have an employee whom I found out was applying for another position. When confronted the employee stated that she was going to tell us after she was confirmed in receiving the position she applied force has not formally submitted a resignation but stated if she is hired she will be leaving our general surgery practice. What are my obligations since she hasn’t formally submitted her resignation?? Can I hire to replace her??

    • Paul EdwardsPaul Edwards says

      Your question is a little bit hard to answer as it seems to imply that you believe you have to pay a fired At-Will employee for hours not worked. I would refer you back to option# 2 in the article and clarify that hourly employees, unless you have promised something else, upon the termination of the working relationship are due pay for all hours worked and nothing else. As always, there are other factors that you may want to consider but it looks like the employee has given notice and is their way out anyway. From an HR side, you may also want to consider that firing someone who gives you notice, for the sake of firing them, sends a message to other employees which could be that they should just quit instead of giving notice. In the service industries, having people quit with no notice can be hard on managers too.

  11. AvatarKaley says

    Hi so I turned in my 2 weeks notice and my boss didnt put me on the schedule I am very sure I am not an at will employee so was I fired.

  12. AvatarT&S Goins says

    If an employee turns in a 2wk notice, And they decide to leave before the 2wk’s are up. They are also retiring. No longer working. Can they get into trouble for this.

    • Paul EdwardsPaul Edwards says

      If the employee is an At-Will employee, most are, but not all, then the following applies. At-will employment can be summed up like this: without an employment contract or similar contractual language, either the employer OR the employee can terminate the employment relationship:

      1) At any time
      2) With or without any notice
      3) For any reason, or for no reason, as long as the reason is not unlawful

  13. AvatarChris says

    If an employee gives their two weeks notice, the employer accepts that notice, but the employer later decides to let the employee go a few days later, can the employer then be held liable for wrongful termination or some other infraction. This is in an at-will state.

  14. AvatarElissa says

    In Virginia is there a law as to when the employer can send the employee home? Does it have to be immediate?

    My husband is an at-will employee in Virginia. He put in his 2 week notice on 10/5/18. He works Sunday through Thursday each week which would have put his last day as 10/18/18. At the end of his shift on Thursday 10/11/18 his manager told him it would be his last day. Should he be paid for the other 5 days?

  15. AvatarRabia Masood says

    I am a manager of a private medical practice.Started my career as a manager 8 months back after my MBA. I have two employees (who are best friends with each other) resigned and will be leaving on Nov 1st. They both are showing serious behavior issues. One slammed my office door right after given a warning, the other yelled at the physician in front of other staff members, yelled at me the same day. She also got a warning but declined to sign it. Scared other witnesses to sign it saying what kind of an office would have a witness sign a warning. Now they agree with me but declined to sign. This is how their behaviour is ruining the whole office environment, destroying employee morale, even though they see clear violation of behavioral policy. Can I let them go before their stated date of October 31st? I have verbal and written warning for them both. Besides, one of them even got her one day suspension today. I do not want the remaining employees, and the new ones working with them after these scenarios. Why do they think there is no bad consequence for them? Why do they feel so secure and I I feel drained out of life after their confrontations?

    • Paul EdwardsPaul Edwards says

      Rabia- This is not OK and as you know, it’s causing the kind of disruption which affects your ability to manage your team and practice. This is something we can help you with and therefore I am going to send you a personalized email.

  16. AvatarTina says

    In Colorado my employee gave their two week notice do we still have to pay them if we do not want them to finish out the two weeks?

    • Paul EdwardsPaul Edwards says

      Hi Tina,

      The key to being able to answer this question lies within whether or not your At Will relationship is intact. In general, the answer is that if your policies are properly written then you or the employee can end the relationship at any time. And that can include during a notice period. Whether your policies present a problem or not, depends on the language contained within, and of course, we can not comment on those. That last factor is why we insist that all of our members allow us to craft a customized and compliant handbook for each business we support.

  17. AvatarVikki says

    Hello, my contract says both parties are “at will”. I gave two weeks notice, and my employer let me work for few days, and then opted for option #3 (before two weeks were over). They took my access away, and paying me till two weeks. Isn’t this breaches “at will” terms? They should allow me to work till my last day if they are not terminating me sooner. Right?

    • Paul EdwardsPaul Edwards says

      Vikki, In general, if you are in an At Will relationship it is likely that it is perfectly OK for them to end the relationship early, and especially so if they offer to pay you for the notice period but elect to not have you onsite working. Consider it a paid vacation!

  18. AvatarRenee L. says

    I have an employee who has been displeased for some time. This employee has turned in her resignation, but has given 5 months notice. This of course leads to many problems…using up all sick leave, trying to save vacation leave for me to pay out, not performing job duties. I do not want to pay unemployment and we are an at-will state. Do I have any options to release the employee without being at risk of paying unemployment?

    • Paul Edwards says

      Technically your employee has given her notice to resign. Giving it while at the same time saying “I effectively quit in 5 months” is kind of silly. She resigned and she is requesting that it take effect in the future. As her employer, there is a strong case to be made that you can accept her resignation effective immediately and deny her request for the future timeline. Now that I’ve said that, it’s important that you note: with every HR problem and subsequent solution there are often several components, if present, that would help you make your case in the event she files for unemployment.
      1) Her request is in writing and is signed and dated.
      2) You documented your side of all this when it came in.
      3) You have documentation that shows that she was not performing well before her resignation.
      4) That her lack of performance continued after her resignation
      Unemployment claim hearings are notoriously employee friendly and no one can promise you that she will not be awarded benefits should she apply. I would also like point out that you are already paying into unemployment, through a tax in each and every payroll, and a single claim in a year or even a couple, will generally have negligible to no effect on your unemployment rates. The cost of keeping people who no longer want to do the job and who you no longer wish to work with far outweighs the cost of a tiny increase to your unemployment tax rate.

      Employees who create these types of unique scenarios are a red flag to us HR professionals. Intuition says there is something else going on here. Please make sure that you fully understand all the moving parts before you take adverse action and essentially fire her.

  19. AvatarJody says

    I have an employee that gave her two week notice on the day she was eligible for a pay rate increase. In the offer letter she was eligible for review at 90 days with a pay increase. Do I still have to honor the pay rate increase for the last two weeks, or can I leave her at her current pay rate?

    • Paul Edwards says

      This is an interesting question and highlights how quickly words on a page can create clarity or confusion.
      The answer probably lies within the language of the offer letter and policies in your employee handbook. Additionally, the answer could also be affected by things like what is written in an email.
      So back to that offer letter.
      Written properly the letter states that you can review her performance and that she may be eligible for a pay raise but also contains language which allows you full discretion to extend the 90 days and/or delay or altogether not grant the raise. in general, there is NO reason to promise or even include pay raises in an offer letter. If for some reason the employee negotiates for that provision which is not unheard of, the letter should be written in such a way as to give you the discretion as described earlier.
      If you want a bonafide answer to your question based on the offer letter, I would pull in the person who wrotask themetter and askthem or run it by your HR support system, whether that is a lawyer or someone who has experience in this area. It is a wage and hour issue.

      If we provided the letter it would likely not tie you to a promise of a raise based on simply getting across the finish line.

  20. AvatarRhonda Deitchler says

    I have an employee that gave a two week notice, we let her go that day (July 26th) due to confidentiality reasons. We are going to pay her for the two weeks which goes into August. Does she still receive August benefits such as 401k match and HSA employer contributions?

    • Paul Edwards says

      Hi Rhonda, your question is complicated but made easier by letting you know that your plan administrators will finally have to do some work to earn their keep!

      Many employers choose to accept a resignation effective immediately. If you do so, you want to be sure to send a confirmation of resignation letter clearing up the timeline, and explaining why you are paying the additional 2 weeks that were not worked. As far as wrapping up benefits that are run through a third-party (i.e. a 401(k) and your group health plan), you want to actually let that third party communicate the details to the employee directly. Your obligation is to contact the third-party administrator and inform them of the employee’s last day worked, and that you’re paying for additional time not worked. It will be up to them to decide how the terms of the individual plan impact the employee’s ongoing eligibility. It’s important not to make representations to the employee yourself, as there are strict process rules for retirement and healthcare plans (including notices and the option to continue coverage) that must be followed

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