There is an unwritten tradition in the American labor market stating that employers should give two weeks notice before terminating an employee, and that workers should give two weeks’ notice before resigning. But is there any legal consequence to giving less notice – or no notice at all? The answer is almost always no.
No Law Requires Two Weeks Notice – Or Any Notice
As discussed in a previous article, 49 of the 50 states have at-will employment laws. This means that any employee can quit at any time, without notice, and any employer can terminate an employee at any time, without notice, unless an employment contract specifically states otherwise. At the same time, it can be disruptive and jarring to be terminated without notice (or to have to replace an employee without notice). Thus, the two week’s notice custom arose.
For the most part, both employers and employees are free to ignore this custom. While many employers say they expect workers to give two weeks’ notice for their own convenience, they cannot legally enforce that policy. Similarly, a worker cannot sue because his employer fired him without adequate notice.
There are only a few exceptions where notice may be required. The first is where the parties have a contract or collective bargaining agreement with a notice provision. The vast majority of non-union workers do not have an employment contract, but some do. These contracts may require a certain amount of notice before the employee quits and, in some cases, before an employer may terminate. They may also require the notice be in writing, or to a specific individual. If you do have an employment contract, you should read it carefully.
For the most part, an employment handbook is not a contract, so a provision in a handbook requiring notice will not be legally enforceable. Some employers state that, without at least two weeks’ notice, they will not pay the final paycheck, or will not pay out accrued vacation. These policies are flatly illegal, and a workers who is underpaid for failure to give notice should contact an employment lawyer immediately.
Employers may also be required to give advance notice of a mass layoff. A federal law known as the WARN Act requires at least 60 days’ notice prior to any plant closing or a layoff that includes more than 50 individuals. The WARN Act does not apply to individual terminations or smaller layoffs. Penalties for violating this Act can be severe, so any employer looking to lay off a significant number of workers, or close a location in its entirety, should work with an employment attorney to ensure the WARN provisions are followed to the letter.
Should You Give Notice?
Assuming you are not required to give two weeks notice, the question remains: should you? There is no one-size-fits-all answer.
As an employee, it is never a good idea to unnecessarily burn bridges with an employer who has treated you well. Many employers may take offense if you leave without notice (and without a good reason for not giving notice). This can lead to negative references or refusal to rehire in the future – especially if your resignation leaves a key position unfilled at a difficult time. At the same time, employees who give two weeks’ notice run the risk that they will be fired on the spot. There is no requirement that an employer actually honor a given notice period. Think carefully about how you expect your employer to react, and how they have treated other employees in that situation.
From an employer’s perspective, many companies are afraid to give two weeks notice because they are concerned about the potential for sabotage, or the theft of customer lists and other trade secrets. Again, this depends on the relationship between the company and the worker. It may make sense to allow a transition period for a long-term worker who is known to be trustworthy and is leaving on good terms. However, if someone is leaving on poor terms, it may be necessary to cut ties immediately. Some employers compromise by terminating the employee immediately, but offering a severance payment of at least two weeks to ease the transition. Employers should be sure to obtain a release of potential lawsuits before paying a severance check. (This is not an area where it makes sense to adopt a do-it-yourself mindset – releases of employment claims are subject to extremely strict legal standards, and the failure to comply with those requirements exactly can render the release wholly unenforceable).
In conclusion, there is no legal requirement that either party give two weeks notice of termination. Failure to do so may be a breach of unwritten rules, but in almost all cases there is no legal remedy. As with so many other aspects of the employment relationship, it is left to the worker and the company to decide.
If you have any questions about this article, or would like legal advice regarding a recent or planned separation, call me at (504) 267-0777 or email me here.