KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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Additional comment on issue of terminating employee
May 22, 2024
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Additional comment on issue of terminating employee from article on May 6, 2024
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Ken,
Seriously with your response on this?
1- if the employee has already given notice and the employer doesn’t want him around anymore, how would preventing the employee from returning but paying him/her for the two weeks violate any Employee Agreement, Handbook provision or Collective Bargaining Agreement? It wouldn’t, because at that point all the employee would have the right to expect would be payment for that period.
2- Cannot envision where, in the situation described…a resigning employee that the employer was hoping to get rid of in the first place…that the employee was performing such an “essential service” that it would be desirable to keep the disgruntled employee on for the two weeks.
3- regarding the potentially “offended” employee, who again is resigning (not being fired), making some claim against the employer I think you are really reaching on this one.
Based on my experience with situations like this, I believe the clean break will be beneficial to both, and once the employer pays the employee all compensation entitled to (meaning back pay, unused accrued vacation pay, and the two week notice period), there is no claim.
I do note that if an employer actually fires an employee, then your concerns about Employee Handbook, any Employee agreement, or Collective Bargaining Agreement would be applicable, as would the possibility of some discrimination or hostile workplace claim (regardless of how meritless). In these situations, unless the termination is clearly for serious cause, I would recommend some type of separation agreement between the parties including some type of severance pay based on the employee’s salary and length of service with the company to eliminate the potential threat of any claim. (Which you can help them with!)
Bob K
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Response
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It makes sense that an employee who has given notice of leaving can be told to leave immediately, thereby terminating the employment and the pay immediately. This is particularly the case when the employment is “at will” [unless you’re in the one or two states that does not permit employment at will –
But what makes common sense isn’t always what the law requires. There are all kind of ant discriminatory and employment laws at play. Consider the Garden Leave Provision. Garden leave (also known as gardening leave) is the practice whereby an employee leaving a job – having resigned or otherwise had their employment terminated – is instructed to stay away from work during the notice period, while still remaining on the payroll. This isn’t the original scenario that started this discussion, because there was no such provision, or employment contract for that matter.
Practical considerations aside, the employer receiving a termination notice from the employee can terminate the employee on the spot. That also terminates pay; some benefits, such as health care may be covered by other laws, such as COPRA.
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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
ken@kirschenbaumesq.com
www.KirschenbaumEsq.com
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