My Grandmother used to tell me that the best way to take off a bandage is quickly and all at once. Not dilly-dallying. Rip it off, pipe down and suck it up! (My Grandma was tough. Not a Marine, but she would have fit right in.)
Employers tend to approach the unpleasant, and often, emotionally wrenching task of terminating employees the same way: quickly and all at once. Not surprisingly, they sometimes delay or avoid making the difficult call of firing a problem worker. When they finally do "pull the trigger", the understandable goal is to get it over with as quickly as possible and move on.
However, under the Labor Law, before turning the page mentally and legally on a former employee, employers must give each such newly minted, "former" employee a specific written notice. Within five working days of being let go, employers must give terminated employees written notice stating the exact dates of the termination and the dates of cancellation of any employee benefits resulting from being terminated. That means, you must tell the employee when was their last day of work and what is the day on which their health care, accident, dental, life insurance, etc. benefits end. (By the way, that date is sometimes the end of the month, rather than the last day of employment.)
Failure to provide this notice may be an independent Labor Law violation. In other words, even if the employer terminated the employee strictly according to Hoyle, if they didn't send or hand deliver the notice, they'd have violation on their hands.
So, what if an employee isn't fired but quits? Must the employer still send or hand out the notice to the resigning employee? The law doesn't explicit say so. However, I always advise client to provide the notice whenever an employee leaves, whether voluntarily or involuntarily. It doesn't do any harm and may save you headaches in the future, should the Department of Labor ever claim that the law applies to resignations.
While this notice is a bit of pain, it also gives you an opportunity. I often have clients use the notice to contemporaneously memorialize the legitimate, non-discriminatory reasons for terminating an employee. This may deter an attorney considering whether to sue on behalf of your former employee, as any decent attorney will want to read any documents related to the termination in deciding whether to take the case. If the employee does sue, the notice, because you prepared it before any lawsuit, is less susceptible to being discounted as something you whipped up post-termination, strictly for "C.Y.A." purposes.
A word of caution if you go this route. Be as factual as possible in describing the performance issues leading to termination. Avoid opinions. Most importantly, never, ever, engage in personal attacks, discuss the employee's protected characteristics (such as race, gender, national origin, sexual orientation etc.) or say anything that you wouldn't want read back to you in court or which you can't defend.
Finally, do not copy anyone on the notice or share it with anyone outside of your business. Doing so could open you to a claim of defamation. An element of defamation is that the allegedly defamatory statement was disseminated to a third party. If you don't send or give a copy of the notice to anyone other than the former employee, you'll have a strong defense to any such claim (even if you "go off" in the notice and give the employee, "what for", as my Grandma used to say).
This article is intended to be used for informational purposes only. Legal advice is neither implied by the author nor should be inferred by the reader. If you have specific legal questions, you should consult with your attorney.
Jeffrey Sculley, who may be reached at firstname.lastname@example.org, is an attorney and counselor at law focusing his practice on representing commercial and residential landlords; providing backroom human resource and employment support to businesses and not-for-profits; representing clients in appealing adverse trial-court and administrative decisions; logo and brand development and trademark protection; and representing clients in all types of administrative, regulatory and compliance matters, before governmental agencies and administrative hearing officers and law judges.
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