Ok, so here’s an interesting situation that brings a lot of questions.
Consider this: Your employee gives you their two-week written resignation notice. You decide that today, the day they give their two-week notice, is going to be their last day…and you walk them out.
What happens next?
Does this situation qualify the employee as being fired?
Is it filed as the employee quit?
And, how will it affect unemployment?
I’ll talk about two things:
For example, here is how a resignation works in Texas, and why you want to ensure you get the resignation in writing, and with witnesses. That’s right, with witnesses. I’ll explain that in a minute.
Although I’m using Texas as an example, the rules are greatly similar in every state. But it’s a good idea to check with your state labor department.
But first, resignations in Texas.
There are five “rules”, if you will, about resignations that you, as the employer, need to know.
- No advance notice of termination or resignation is required.
- When there is an advanced notice of resignation, i.e. two weeks, you can accept, reject, or modify it – meaning change the time frame of the notice.
- If the notice period is rejected, then you don’t have to pay for the employees’ time NOT worked. The responsibility to pay ends on the date the work separation becomes effective. If that is today, then it is effective today.
- If an employee gives you a resignation letter, and you accept it early (before its effective date), the company does not owe any pay for the part of the notice period that was not worked. Unless a contract applies that otherwise obligates the employer to pay for time not worked.
- The employee will not be eligible for unemployment insurance that is chargeable to you.
Now, why do you want the resignation in writing and why the need for witnesses?
Well, when, not if, the ex-employee goes to file for unemployment, they won’t get it.
We see employees all the time say they are quitting and then filing for unemployment.
Clients of ours have lost cases where they did not get the resignation in writing.
We have had clients who have had witnesses that the employee quit, lose in a law hearing because there was no written resignation. You heard me right.
I tell employers to draft a resignation letter for the employee who quit, and have the employee sign it in front of witnesses.
And always be sure to give them a copy of the signed resignation to take with them.
Your state unemployment department is there to help employees get unemployment benefits, not to protect employers from fraudulent claims. I promise.
This may seem trivial and a lot of extra effort but when, not if, that day comes, you’ll be glad you did.
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Charles Read, CPA, USTCP, IRSAC
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