HR Base Camp Roundup – July 13th, 2022

Today’s HR Q&As from our HR Base Camp Facebook Group and HR Solution Center revolve around employee resignations (appropriate during the “Great Job Hop”) and long-term leaves of absence.

Here are our top questions from the last week:

  1. What should you do if an employee requests an extended absence to care for their child?
  2. What do you do if an employee resigns and then files for unemployment?
  3. What if you don’t want your employee to work through the date they provided in their resignation?

 
Not a CEDR Member? Get additional guidance and updates in our private Facebook Group. Click to join!
 

What should you do if an employee requests an extended absence to care for their child?

I have an employee who wants more than a month off to take care of her teenage daughter who is not well. I have to hire someone to fill in while she is out but was wondering: Is there anything I should know before giving this employee the time off they requested?

It’s always hard to hear about an employee having to face something like this. We also understand how much stress this kind of situation can put on you as an employer. Of course, things like this will inevitably come up from time to time. And understanding employee hardships and doing what you can to work with your employees is a clear sign of good management.

Caring for a child, spouse, or parent with a serious health condition would qualify an employee for up to 12 weeks of unpaid leave under the Family Medical Leave Act (FMLA). That law only applies to employers with 50 or more employees at the federal level, though some states extend those requirements to smaller businesses. In California, for instance, the California Family Rights Act outlines requirements that are very similar to FMLA and that law applies to all private employers with five or more employees. 

If you are not required to offer leave by law, you would be able to offer this employee a personal leave of absence and set your own terms for that leave. For example, you could require that the employee use any available PTO or sick time during her time away if doing so was not in conflict with any state or local laws. Many states set guidelines for when you can and cannot require employees to use sick leave, however, so if you’re not sure what the laws in your state say, it’s important that you work with a qualified HR professional to make sure the parameters you put in place are compliant with the laws that apply to your business.

You’ll also want to make sure and set a return date before the leave is granted. This can always be changed later on, but it’s important to have a date on file so the leave isn’t left open-ended, which could lead to you having to chase the employee down to find out when (and if) they plan to return down the road (unfortunately, this happens all the time). 

Give the employee a leave of absence form to fill out and make sure that form includes a space for a date of return (the form linked above includes all of the information you’ll need to properly document a leave of absence).

As an added note, leave of absence policies should also be clearly outlined in your employee handbook. This is important for a number of reasons, including to make sure that your employees know what the practice offers in terms of leave, so you’ll have a compliant point of reference you can turn to for guidance on how to handle these types of requests, and so that you can be sure that you are applying your policies consistently with all of your employees. 

CEDR customizes the leave of absence policies for all of our members’ handbooks, including state customizations like the CFRA.

 
Click here to download your free leave of absence request form from CEDR.
 

What do you do if an employee resigns and then files for unemployment?

I had an employee resign from her position a few weeks ago but I just received paperwork saying that she’s trying to claim unemployment benefits. What should I do?

The unemployment process can certainly be a frustrating area to navigate, but it’s something that we happily guide our members through all the time!

When it comes to filing for unemployment, pretty much anyone can apply at any time. Even your employees who are currently employed could still FILE for unemployment, but the decision as to whether or not they are eligible to receive payments will ultimately be made by your state-run agency. 

We often hear from employers who are upset that a former employee applied for benefits. It’s important to remember that everyone has a legally protected right to apply for unemployment benefits, and their application itself doesn’t have any adverse impact on your business. 

The eligibility criteria varies from state to state but, generally speaking, employees are eligible for benefits if they are unemployed (or underemployed) through no fault of their own. Meaning, if they made the voluntary choice to resign from their position, in the majority of cases they will not be eligible for unemployment. 

Just like if an employee was terminated for misconduct, the unemployment agency looks at the reason for separation, facts surrounding it, etc. An easy example of why someone might be eligible for benefits even though they resigned is something called “constructive discharge.” This basically means that the employee was subject to such bad conditions that they had no reasonable choice but to resign. For example, they were being subjected to extreme harassment in the workplace that made the workplace unbearable. 

In most cases, there was no constructive discharge and a resignation was truly a voluntary choice. The employee isn’t trying to say you did something wrong, they’re just taking the chance on a possibility of being able to get benefits. 

When a notification comes in stating that an employee is filing for benefits, we generally recommend that you respond to all requests from the state with factual information regarding the employee’s resignation. Be clear and to the point. Tell them that the employee voluntarily resigned. And, if they gave a reason for resignation, supply that information as well.

This is also where working with CEDR to draft a “confirmation of resignation letter” serves to help you quite a bit. You can submit any documentation you have to show the employee voluntarily resigned on her own to the agency, including the confirmation of resignation letter, and anything the employee gave you in writing, such as a resignation form or letter, text, or email. Unemployment agencies are always dealing with “he said, she said” situations, so the more factual information you can show regarding this employee’s separation, the easier you make it on the agency. And, in turn, this will hopefully make it easier for them to see this was a true resignation and therefore determine that benefits are not available. 

Unemployment can be a trying process, but receiving a notice that a claim has been filed isn’t necessarily the end of the road. Of course, having HR experts in your corner to help guide you through the various twists and turns you might face can be a huge help when issues like this come up for your business!

 
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What if you don’t want your employee to work through the date they provided in their resignation?

I had an employee submit their two-week notice today but I’d prefer to just let them go rather than having them continue to work for me with one foot out the door. Anything I need to know to handle this the right way?

When an employee lets you know they intend to quit, it can present a number of unknowns. Will they continue to give 100 percent to their work before they go, or will they phone it in until their last day? Can you trust them to be responsible with continued access to your files and systems, or is there a chance that they’ll try and cause damage with their remaining time if you let them stick it out?

With these variables at play, you may rightfully wonder if you’re required to let an employee finish out their time after they’ve submitted notice of their intent to resign, or if you can simply let them go on the spot.

The short answer here is that, so long as you and that employee are in an at-will relationship, you can accept their resignation early. If you are in an at-will relationship, you are not required to employ them for any set period of time. They can decide to quit and, likewise, you can decide whether you want them to continue working with you after they’ve told you they’ve decided to leave. 

If you opt to do this, you should issue them an acceptance of resignation letter that confirms the details they gave you of their decision to resign, and states that you have chosen to accept their resignation early. This helps document that the end of the employment relationship was in fact the employee’s own decision. If you’re a CEDR Member, the HR experts in our Solution Center are happy to draft this letter on your behalf and provide it to you when you need it.

It’s often a very good idea to pay the employee out for the notice period they gave you. This is true for a few reasons. First, it helps prevent the employee from being upset about your decision to part ways with them early. Second, it helps avoid them being eligible for unemployment. And, third, there’s a team morale consideration. 

If you separate from them early, they may feel like they are being fired and therefore try to get unemployment. Unemployment agencies differ on how they handle this, but most trend toward not providing benefits if the employer was accepting a resignation early by about a week or two. But we have seen benefits issued in some cases, so it’s helpful to pay the employee for the notice period so that they did not actually experience any loss of wages. 

As for the example-setting/team-morale consideration, if your other employees see you let someone go before the end of their notice and you opt not to pay the employee for their remaining time, it could send the signal to the rest of your team that providing notice won’t serve them and could lead them to decide not to provide notice if they ever decide to step down. 

If you’re interested in reading more about this topic, we have a blog on the subject here.

All of this being said, it’s in your best interest to work with a knowledgeable HR professional to make sure your interests are protected before letting an employee go early after they submit their resignation, which is just one more benefit of working with the experts in CEDR’s Solution Center.

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At CEDR, we help employers protect their businesses and build stronger teams. Because stronger teams build better workplaces, and better workplaces make better lives.

Have an HR question you need to talk through with an HR expert? Reach out to the Solution Center for expert guidance, or get your questions answered in our private, professional Facebook Group, HR Base Camp.
 
Not a CEDR Member? Get additional guidance and updates in our private Facebook Group. Click to join!

Jul 12, 2022

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.
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