Do you need to give an employee notice of the intended termination before letting him or her go?

March 20, 2017

Topics: Terminating Employees

When firing an individual employee, an employer is generally not required to give the employee advance notice that their employment is going to be ended, unless there is an applicable employment agreement, policy or law that requires otherwise.

Agreements:  Employers should check if the employee is covered by an individual employment agreement or a collective bargaining agreement that contains a notice provision.  Those agreements may require that the employer give the employee a set number of days of advance notice before terminating his or her employment.

The agreement may also require that the employer take certain steps before terminating an employee.  For example, an agreement may require that the employer give an employee written notice of anything that the employee has done that may be cause for termination and then provide the employee a set amount of time to improve performance or fix the problem, rather than letting them go right away.

Policy:  Employers may also have a policy, perhaps in their employee handbooks, specifying that the employee will provide notice—and/or requiring employees to give notice before they quit.  If there is such a policy, the employer should apply it consistently to help avoid any claim of favoritism or discrimination.

Laws/Notice of Mass Lay Offs:  Employers should also be aware that there are federal and state laws that apply to mass layoffs and plant closings.  Those laws require employers to give employees advanced notice.  Under the federal law, employers must give employees 60 days written notice if the employer intends to lay off more than 50 employees during any 30-day period as part of a plant closing.  Also under federal law, employers must also give notice of any mass layoff of 500 or more employees during any 30-day period, or mass layoff of 50-499 employees if they make up at least 33% of the employer's active workforce.  There may be applicable state laws that may be more restrictive or have additional requirements.

Employers should be mindful of the fact that giving employees contracts requiring notice and/or including such provisions in their handbooks could destroy their employee’s at will status, which is generally not desirable.

Employers should consult with counsel to ensure that any employee terminations are done in compliance with any applicable agreement, policies and laws.