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Take 5: Before you say Goodbye

by Andrea Gosfield

Severing the ties of employment can be tricky. When employees resign with two weeks’ notice it allows for transition of duties, informing clients, and other housekeeping tasks. But there are certain situations where the employer needs to just rip off the band-aid, and accept, or request, a resignation effective immediately. Before requesting an immediate resignation, however, Andrea Gosfield, senior associate at Griesing Law, LLC says employers should consider these tips:

1.) An employee’s departure may result in decreased workplace morale, as remaining employees are unexpectedly burdened with additional work.

2.) On the flip side, morale may be improved if the employee who was asked to leave immediately contributed to a negative work environment. This must be balanced against the potential to lower morale of remaining employees who may fear they will receive similarly harsh treatment if they choose to leave.

3.) Opting to pay the resigning worker their normal salary through the planned last day, even if the employer orders the worker to leave immediately, can alleviate the burden and cost of unemployment benefits. For commission-based jobs and high-ranking executives, the question is more complicated. If the employment agreement at issue involves timed compensation benefits, such as sales commissions or vesting of stock options, employers must carefully consider what they are contractually required to pay the employee being asked to leave early.

4.) Your employee handbook should dictate how employees are required to handle confidential and proprietary data both during and after employment. It is still good practice, however, to consider terminating access to that information once notice has been given. When there is risk that the departing employee could poach valuable sales contact information or continue having access to proprietary information or trade secrets, protocols should be established to ensure it remains intact. While the Defend Trade Secrets Act may provide some protection, this factor may be critical enough to warrant asking the employee to leave immediately.

5.) Not all employment relationships are positive. If an employee quits in the midst of allegations of discrimination or workplace harassment, a request for him to leave immediately could be used as evidence of an adverse action in a claim of employment discrimination or retaliation. Where a less-than-positive employment relationship exists, the employee may use the employer’s request for early separation as support for termination without cause. This may open the door for additional damages in a court case. Employers should proceed with caution when choosing a course of action when it comes to employee resignations. The decision should not be made lightly, and will differ vastly based on the industry, the nature of the employment relationship, and the jurisdiction.

Andrea Gosfield is a senior associate at Griesing Law, LLC, where she represents public and privately held corporations, government entities, small businesses and nonprofit organizations.

Published (and copyrighted) in Philly Biz, Volume 1, Issue 7 (June, 2016).
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