Should letters of termination be specific or generic?
It's up to you. Some companies don't provide any written information to employees upon their termination for fear that the documentation may be used against the organization. They simply provide employees with final checks and COBRA paperwork. Other companies provide a very basic written statement declaring, ''Today will be your last day of employment with the company.'' No cause of termination is mentioned.
Still other companies provide very detailed information in a written letter explaining all the reasons why termination is occurring. Remember, a well-constructed termination letter could go a long way toward fending off potential litigation claims because contingency plaintiff attorneys are less likely to take a case that appears to be airtight in favor of the employer. On the other hand, a termination letter with inaccurate information could be the very documentation a plaintiff attorney needs to prove that the company was less than responsible in the fact-finding that led up to the decision to terminate.
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If you're going to write a specific letter of termination, include the following information in the body of the letter:
- Written warnings
- Performance reviews that show the employee was not meeting expectations
- Merit reviews that show the employee received no increase in pay
- Any decision-making leaves or suspensions that the employee received prior to termination
- Any other affirmative efforts you made in an attempt to rehabilitate the employee
A sample specific letter of termination is presented in Appendix S.
Note that specific termination letters always describe a ''final incident'' that has led to the decision to discharge. A clean final incident that breached the terms of prior warnings is the ''threshold event'' that triggers the termination action. Clean final incidents are easily documented and are consequently often found in documented termination letters.
One final note: Some employers ask that employees sign these termination letters as a matter of practice. In those cases, there is usually a line at the bottom of the page where employees can sign after a statement that reads, ''I have received a copy of this document.''
Requiring employees to sign their own termination letters, as an evidentiary matter, ensures that there won't be any dispute that the employee received the document. There's no harm in adding it, of course; it's just more of a stylistic issue. Otherwise, there isn't much need for an acknowledgment countersignature. Therefore, add the countersignature requirement only if your company is more comfortable with the added closure it may bring to the employment relationship.
If an employee gives two weeks' notice of resignation, are we permitted to let the employee go that same day?
Most resignations are fairly straightforward: Employees give you written notice of their intentions to leave the company, and two weeks later they're gone. However, many companies with salespeople ask account executives to leave the same day that they give notice. The logic there is that salespeople who are leaving to join the competition may bring sensitive client information with them.
It's also the case that managers sometimes feel that certain non-sales employees are better off leaving that same day that notice is given. The reason? If those employees are perceived to be troublemakers, if they have access to sensitive company information (especially information systems or finance employees), or if they appear to have mentally checked out, then having them around may be a morale or security problem.
In such cases, it is certainly acceptable to ask employees to leave the day they give notice. After all, they've already given notice of their intention to leave your company, haven't they? Wait—there's a catch here. If this is done incorrectly, you could be exposing your company to unnecessary liability.
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When employees give notice of resignation, they are technically seen as the ''moving party'' in the termination. They have the right to give two weeks' notice and work through those two weeks, especially if your company states in its handbook that it expects employees to give two weeks notice upon resignation.
If you ask employees to leave that day, however, then you set the final date of termination. Technically speaking, you become the ''moving party, and you ll have changed their resignation to a termination. What does that mean? First, from an unemployment insurance standpoint, the employee may be eligible for unemployment. If the company is the moving party, states will typically award a claim of unemployment insurance to a petitioner employee.
Second, there is a possibility that an employee who leaves under adverse circumstances may pursue legal action against you in the form of a wrongful termination lawsuit. Remember that in wrongful termination challenges, the burden may be on you to prove that you had cause to terminate. Since you were the moving party but the employee may have had no performance problems during his tenure, you wouldn't necessarily be able to demonstrate that you had cause to terminate. And lo and behold—you'd have to settle out of court because you d have no defense.
There s a combination solution to avoid this unemployment claim and wrongful termination liability exposure: First, ensure that you have a clearly defined employment-at-will working relationship by documenting the at-will policy on employment applications, in company handbooks, in offer letters, and in free-standing employment-at-will confirmation statements. Second, simply pay employees for their two weeks' notice if you require them to leave the same day that they give notice. In essence, that two-week payout serves as a simple insurance policy. The employee is paid through the end of the notice period, that individual remains the ''moving party, and claims for unemployment insurance or wrongful termination liability should be minimized. Make this a standard employment practice whenever you relieve people of their duties before their resignation date.
What if the employee verbally resigns but won t give you written confirmation via a letter of resignation? If you suspect that a substandard job performer who gives notice may change her mind in the interim, you should confirm her verbal resignation in writing by presenting her with a confirmation of resignation (see sample in Appendix T).
Such a written confirmation will make it more difficult for the individual to change her mind one week later and attempt to keep her job—despite her earlier notification of resignation.
Finally, what if an employee rescinds her resignation during the two-week notice period and demands to have her job back? Be careful here—she may indeed have the right to keep her job! The key question that a court would look at in a situation like this is, Did you as the employer act in reliance on the worker's notice? In other words, did the company post the job opening, interview other candidates, reassign work within the unit, or offer the position to another candidate? If the answer to most of these questions is Yes, you will have a better chance of successfully defending a charge of wrongful termination.
If, on the other hand, you've done nothing in the two-week notice period, a court might argue that the employee was indeed free to rescind her resignation and get her job back. In that case, a court might interpret your refusal to reinstate the individual as an error in judgment on your part. The lesson here is simply this: When problematic and underperforming employees give you two weeks' notice, don't start dancing in the aisles too quickly. You're better off taking immediate action to fill the position being vacated by posting it internally, running an ad, and reassigning work to remaining staff members.
Of course, in certain instances, you may choose to retain a well-performing employee who rescinds her resignation, but you have to be careful about setting an unwanted precedent. In the future, it could be argued that if you allowed one employee to rescind a resignation, you'll have to allow others to do so. Therefore, you shouldn't develop an active practice of allowing such changes of heart at the eleventh hour.
