Use caution when it comes to terminations

Q. If an employee has provided two weeks' notice that they are terminating their employment with our company, what are our financial responsibilities toward them for the next two weeks? I understand we are responsible to pay any vacation time owed. However, if we choose to release the employees of their duties immediately, are we required to pay them for that two weeks? And if so, why wouldn't we just not accept their resignation and instead terminate their employment, i.e. fire them, (assuming they are an employee at will, as all of our employees are) the very same day? Also our policy regarding sick/personal time has always been that if it is not taken, it is lost. Upon either termination or resignation, are we obligated to pay for any personal time not taken?

A. It sounds as if management is not happy someone has chosen to leave. I can answer your questions from a strictly legal standpoint, but what is legal is not always what is best for the organization in the long term. How you handle this situation sends reverberations throughout the company and sends a message to the rest of your employees. There may be a number of unintended consequences, so proceed with caution.

It is customary for employees to give some kind of notice prior to leaving an organization two weeks or even longer in some positions or industries. Notice is provided as a consideration to the organization so they have time to transition work, make accommodations for projects in process, or hire someone else. If you decide to terminate an employee who has given notice and choose not to pay them for the notice period, most likely anyone else leaving your organization will not be inclined to give you any notice at all. Perhaps for this person or role, you don't care, but going forward that may not be the case. You may want to use some part of the notice period to transition work, and to pay the employee for the full notice period. You may not want to do this or think it is necessary in this one case, but it can ensure the sanctity of the resignation process at your organization.

I consulted with Josh Black, managing partner at Bello Black & Welsh, a Boston firm specializing in employment law to confirm your legal obligations. According to Black, "There is no legal reason for a company not to require a resigning employee to leave sooner than his or her desired separation date. In most instances, expediting the departure does not trigger any obligation to pay severance. Obviously, any written severance policy should be consulted, as a policy can create a contractual obligation. You should be aware that by expediting the separation, you will render the departing employee eligible to receive unemployment insurance benefits. This may have some indirect financial impact, as the claim will increase the company's experience rating, which is the basis on which unemployment taxes are calculated."

Most human resources people will tell you it is advisable to minimize the time between when employees announce their resignations and their departure from the office. Resignations have some impact on the morale of the remaining employees, and the departing employee may serve as a distraction to others.

Black added, "There may be a concern that an employee may take company data during the transition, or work on other endeavors. That being said, there are times when a longer transition period is in the company's interest, such as the departure of an employee who is deeply involved in a complicated project or who has extensive knowledge that must be transferred to colleagues.

"You should also be sure to promptly pay the departing employee his or her final wages, as well as all accrued, but unused, vacation. Under the Massachusetts Wage Payment statute, vacation is considered a form of 'wages' and must be paid on the day of separation in the case of an involuntary termination. . . . Finally, the prevailing view is that sick time and personal time are not covered by the wage payment law and, therefore, do not have to be paid at the time of termination. Because this is still a gray area in the law, employers are well advised to state clearly in its vacation policy that accrued sick and personal time will not be paid upon termination."

Q. I work for a small manufacturing company with about 25 employees. Production shuts down the first week of July every year and everyone is off, with the exception of a few front office employees (me). Everybody who is off uses their vacation time for this week. This year, my employer decided that instead of paying us for the Fourth of July holiday we would instead be paid for the day after Thanksgiving and we would now be required to use a vacation day for the Fourth of July, a day we are not even open. Can they do this? To me it's like telling me I have to use vacation time on Sundays. If we're not open and I can't work, how is that a vacation day? A vacation day to me is a day off from work. I'm not missing work on the Fourth of July so can they require me to use a vacation day?

A. Paid time off, vacation days, and holidays are all situations when we are not at work, but they can mean very different things when management and employees discuss policy. I again consulted with attorney Josh Black, who explained, "In Massachusetts, employers are not required by law to provide any vacation or to pay employees for any holidays." I'm sure this comes as a surprise to many people, and may explain why we see such a range in employers' holiday and vacation policies.

With some exceptions, employers are required to close their businesses on certain holidays, including Independence Day, but they are not required to pay employees who do not work on legal holidays.

Also, the day after Thanksgiving is not a legally recognized holiday, so your employer could require you to work on that day. Without a written policy, collective bargaining agreement, or other form of contract to the contrary, your employer has broad discretion to define the terms of its vacation policy and to decide for which holidays it will pay employees.

If you disagree with the way your employer is treating holidays this year, I suggest you bring your concerns to your manager or to the company's human resources department. If your colleagues share your feelings and join you in approaching management, your employer may be willing to make some changes for this year or next.

Q. I recently graduated from a healthcare program with a bachelor's degree. I obtained a job in a hospital and completed almost seven weeks of orientation. About a week ago, I had a patient who had a big change in his status. He became a danger to himself. I obtained orders for care that would keep him safe, but those orders were canceled by my manager and preceptor. I was upset by this and made a comment to my preceptor that I could not believe patient safety was a nonissue. I also stated that I was going to talk to my former instructors about what I could have done to alleviate this situation. The following day, I received a call from my manager telling me I could not work until I met with her and human resources. I asked what this was about and she stated "my behavior and documentation." I met with HR and another supervisor, repeated my version of what happened, and was told I was "being suspended with pay" because I reported a patient safety issue. They also brought up an issue from three weeks prior in which I missed several days due to car trouble. When I came back following that nothing was ever said to me about it. I asked why they were bringing this up now. They replied to make sure it was resolved. I replied it was. The following day I received a call from HR telling me that they had decided to terminate me and the reason would be "poor performance during orientation," but they based this on my previous car trouble in which nothing was said to me. I didn't receive any warnings from that issue. I understand that I am an employee-at-will and that I could be terminated. I believe this was purely retaliation. Can I collect unemployment for this termination? Can I sue them for defamation of character?

A. Working in the healthcare industry has many rewards and challenges. During the first weeks of your employment, you experienced one of these challenges - patient safety. Patient safety issues are profoundly serious for healthcare organizations and healthcare professionals. You also created a challenge for your employer by not showing up for work for several days. Healthcare organizations depend on their staff showing up to maintain a safe environment for employees and patients.

You successfully completed the academic coursework to secure a job in the healthcare industry, which is a great accomplishment. The next step it seems is to gain some real world experience in a hospital working with management and a preceptor. As you told me in your letter, these staff members have over 20 years of experience and most likely have been selected to teach and manage entry-level staff based on that experience. Their role is to educate, share their experience and expertise, provide answers and encouragement, and to evaluate and discipline.

I understand why the case with your patient may have upset you. You were in a new position, still learning, and concerned about what you viewed as a dangerous situation. Two experienced professionals saw the situation differently and addressed it. Your seemingly off-the-cuff remark about patient safety being a nonissue is a concern on many fronts. Your comment was delivered in an accusatory fashion, and not as a question or learning opportunity. It seems you were very sure you were more knowledgeable about the situation with your seven weeks experience than managers with 20 years behind them. You may have raised a valid issue, and you had the opportunity to discuss this in greater detail with your former instructors. During these discussions, I hope you touched upon more productive ways to communicate on the job so others will be willing to listen to your concerns.

Almost anyone with a car has had trouble, but not dealing with your manager when you did return to work is not the best way to develop a strong working relationship. I am surprised no one said anything to you, as most employers would find this behavior disappointing. I'm sure it had an impact on how you were being evaluated. You were most likely on a probationary period during this training time - many organizations have a 90-day time frame where you can be terminated without cause.

I encourage you to look at this situation and see how else you might have dealt with these issues. Learning how to deal with similar work situations will prove valuable for your future.

I am not a lawyer, but trying to sue for defamation seems somewhat extreme. As far as unemployment, you will need to file a claim to see if you are eligible to collect.

Elaine Varelas is managing partner at Keystone Partners, a career management firm in Boston.

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