By Allen Smith, J.D.

Most employers want employees who have resigned to work their full notice periods, but some companies may decide to immediately dismiss those workers in certain circumstances. Here is an overview of such situations.

“In most cases, employers will want resigning employees to provide reasonable notice of resignation and will want the employees to work the full notice period so that customers and work tasks can be smoothly transitioned,” said Robin Shea, an attorney with Constangy, Brooks, Smith & Prophete in Winston-Salem, N.C. “In some cases, the departing employee may even be able to help train his or her replacement.”

However, there are instances when immediate dismissal might be appropriate, according to David Barron, an attorney with Cozen O’Connor in Houston and Dallas:

  • The employee is leaving for a competitor and there is a concern the employee may share confidential information or trade secrets.
  • The employee is disgruntled, and allowing the worker to remain for two weeks would hurt other workers’ morale.
  • The employee’s role is sensitive, or there is a risk that an employee who is not focused and accountable could harm the business.

An example of the first category would be a salesperson. “Why would you allow the employee to continue to talk to customers and risk he or she would lay the groundwork to compete against you?” Barron asked.

Removing an employee’s access to confidential information may be important. “You wouldn’t want to allow an employee to continue to be involved in sensitive meetings if they are going to work for a competitor and may use that information,” he said.

“Data exposure is directly correlated to when people leave jobs,” said Mark Wojtasiak, vice president of research and strategy at Code42, which focuses on data security, in Minneapolis. “Simply put, when people leave their job, they take data and reports with them.”

In addition, “Removing a disruptive employee may have a significant benefit to morale,” Barron said. “You don’t have to allow an employee to openly trash the company for two weeks on the way out the door.”

An example of the third category would be a safety-sensitive role like a quality control inspector. “Why would you allow someone to perform this role if they are checked out and not focused on their work?” Barron asked.

Check the Notice Policy

After getting a resignation notice, an employer first should consider whether it has a notice policy and if the employee has an employment contract, said Ashley Cuttino, an attorney with Ogletree Deakins in Greenville, S.C.

When an employer has a policy that requires two weeks’ notice, an employee may be able to claim reliance on the policy and make a claim in some jurisdictions for the two weeks of notice pay if terminated immediately, she said. “As a result, any such policy should request a notice but reserve the right of the employer to accept the resignation immediately,” Cuttino recommended.

If there is an employment contract, it may state how resignation and notice periods should be handled, she noted.

“In most instances, the resigning employee will be at-will and the employer can determine if [it] will allow the employee to work the notice period,” Cuttino said. “Whether or not the employer chooses to allow the employee to work the notice period is normally an issue of what work needs to be completed to transition the employee out of the organization.”

Give and Take

“In many cases, there is a give and take in the notice period,” Cuttino added. “It is common for a resigning employee to work until the transition is complete, which may or may not be the entire two-week period.”

“It is not an all-or-nothing question on retention at full duty for the two weeks or immediate dismissal,” Barron said. “It may be appropriate to allow an employee to work on transition for a week with his or her replacement and then be on call for questions for the second week.”

Christopher Durham, an attorney with Duane Morris in Philadelphia, said an employer might choose to place a departing employee on a form of garden leave for the notice period. That is, the worker would be relieved of day-to-day job duties and responsibilities, as well as access to confidential information, but required to respond to inquiries related to the transition of the employee’s job duties and responsibilities. These inquiries would generally be limited, he noted. The departing employee also would be responsible for responding to inquiries on any projects or customer accounts on which the employee is working, he said.

Keep Employee Assumptions in Mind

“Employees assume they have a right to be paid for their two-week notice period and can sometimes file unemployment or wage claims if they are immediately separated without pay,” Barron said. “In most states, however, employees have no right to be paid for the resignation period and an employer can lawfully terminate immediately.”

He added a word of caution. “If employees come to understand that they will be fired immediately on resignation as a company practice, they may choose to stop providing notice,” he said.

This would be “very disruptive to the employer’s operations,” Shea noted.

“Paying in lieu of notice or moving to limited duty for a temporary period to assist with the transition of responsibilities may be a preferred option,” Barron said.

Minimize Legal Risks

“Employers should also make sure that there is no law in the relevant jurisdiction that requires employees to be paid if the employer releases the employee immediately,” Shea added.

There are legal risks for immediate dismissal if a departing employee has made a prior complaint against the employer, Cuttino cautioned. “Voluntary resignation will, in most cases, extinguish such a claim,” she said.

Nonetheless, Barron said that there usually is little legal risk to relieving a resigned employee from duty and paying out the remainder of the two-week period.