TEXAS EE RESIGNED, CAN WE TERM WITHOUT PAY?
TLCTX
43 Posts
An employee resigned last week, with an end date of 2/29/2008. Since she resigned, she hasn't been working efficiently, has been on phone with friends, comes and goes as she pleases, etc. Her boss wants to term her today. She is hourly, without any vacation or sick leave.
Can he legally term her today without needing to pay her for Wednesday - Friday?
Thanks!
Can he legally term her today without needing to pay her for Wednesday - Friday?
Thanks!
Comments
Yes you can term without paying for Wed-Fri. There is no requirement in Texas state law or federal law that requires an employer to pay for time not worked, especially since she is hourly. But you do have to think about the precedence you are setting in not paying it. It might possibly lead to employees not giving notice at all. If she files for unemployment, the following applies
"During such two-week period, early termination of the employment relationship by the party receiving such notice will not change the nature of the separation. The party first initiating the separation will continue to bear the burden of persuasion as to whether the separation was justified; that is, in the case of an involuntary separation, whether the claimant was discharged for misconduct connected with the work or, in the case of a voluntary separation, whether the claimant voluntarily left work without good cause connected with the work. " from the Texas Unemployment Appeals Manual.
Short timers' disease can be a problem.
The party initiating the termination is generally responsible in a UI claim and always in TX. If she's doing something you would normally fire her for, and if you are tight on UI claims management, then treat it like any other performance issue. Follow your policy and consider her past documented performance issues, if any. If you aren't tight on UI claims, let her go and hope they buy your story that her termination was misconduct associated with the work at that time, which it may or may not have been based on your policies and prior documentation of issues.
TXHRGuy...did you happen to miss the fact that she resigned? The quote I posted was directly from the Texas UI Commissions appeals manual. Since the employee initiatiated the termination by resigning, then the company doesn't have to even mess with the misconduct issue. They just need to tell the Commission when asked that she resigned and they asked her to leave/released her before her two weeks notice was up. It can get more complicated if the notice was more than two weeks, but it was not based on the OP.
{Side note: Anyone in Texas who is bored and wants something to read, the appeals manual is quite interesting. It is about 168 pages of "light" reading and can give a very good overview on how Texas Unemployment decisions are made.}
TXHRGuy...did you happen to miss the fact that she resigned? The quote I posted was directly from the Texas UI Commissions appeals manual. Since the employee initiatiated the termination by resigning, then the company doesn't have to even mess with the misconduct issue. They just need to tell the Commission when asked that she resigned and they asked her to leave/released her before her two weeks notice was up. It can get more complicated if the notice was more than two weeks, but it was not based on the OP.
{Side note: Anyone in Texas who is bored and wants something to read, the appeals manual is quite interesting. It is about 168 pages of "light" reading and can give a very good overview on how Texas Unemployment decisions are made.}
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I work extensively with the policy and precendence manual.
She initiated the termination on a given day in the future. The cause related to what actually separated her from employment was initiated by the employer on on a given day prior to the date of notice provided by applicant. This is actually spelled out in the appeals and precedence manual. There are contextual issues that can sway the result one way or the other. Here are the some that I suspect are the most common:
http://www.twc.state.tx.us/ui/appl/vl.pdf
Under VL 135.25
Appeal No. 86-20059-10-112387. On December 11, the claimant informed the employer that he would be leaving on January 30th of the following year. He was scheduled to report to active duty on February 4th. The employer only allowed him to work until December 15th. HELD: The Commission has adopted a policy that recognizes a general expectation in the work place of two weeks' notice of separation. When a party gives notice in excess of two weeks and that notice is accepted before the intended effective date, the burden of persuasion shifts to the party accepting the notice early. In the instant case, the separation was treated as a the employer's early acceptance of the claimant's notice. As the employer failed to meet its burden of establishing misconduct connected with the work on the claimant's part, no disqualification under either Section 207.045 or Section 207.044.
However:
Appeal No. 96-011165-10-092696. On or about July 1, 1996, the claimant submitted a written notice of resignation to the employer, informing them that he would be resigning effective August 4, 1996. He intended to go to work for another company at that time. On July 25, 1996, the employer hired a replacement for the claimant, and the claimant’s services were no longer needed as of that date. HELD: When the moving party gives more than two weeks notice of an impending separation, and a separation actually occurs within two weeks of the stated effective date of the notice, the original moving party retains the burden of persuasion to establish the na-ture of the separation as either a voluntary quit or a discharge. The claimant in the instant case retains the burden of persuasion to es-tablish the nature of the separation. This claimant resigned to ac-cept other employment, which is a resignation for personal reasons and not for good cause connected with the work.
The second appeal doesn't really work here because it wasn't more than 2 weeks notice but is included for completeness.
Also note that the above appeal relates to a termination in the final two weeks of a notification period that exceeds two weeks but what happens prior to the 2 week period preceding separation? Here's the TWC's view on that one:
Appeal No. 87-00697-10-011488. On November 2, the claimant gave notice of his intent to quit his job in March of the following year. He further advised the employer that, during that time period, he intended to work under a decreased workload and would train only one particular individual to replace him. The employer accepted his resignation effective immediately. HELD: Recently adopted Commission policy provides that where a party gives in excess of two weeks notice of separation and that notice is accepted immediately, the burden of persuasion will normally shift to the party accepting the notice early. As the employer accepted the claimant's notice early here, the separation will be considered a discharge. The burden of establishing that the claimant was discharged for work connected misconduct was found to have been met in that the claimant's actions of giving the employer an ultimatum that he would not perform to his usual standard during his notice period amounted to intentional malfeasance, thus constituting misconduct connected with the work on the claimant's part.
You stated "Also note that the above appeal relates to a termination in the final two weeks of a notification period that exceeds two weeks but what happens prior to the 2 week period preceding separation? Here's the TWC's view on that one... " and then posted another example of someone who gave more than 2 weeks notice.
All of the appeals that you quoted are for giving more than 2 weeks notice. Based on the original posting, this employee didn't give more than 2 weeks. My appeals quote was from the following Section:
VL 135.25 DISCHARGE OR LEAVING: LEAVING PRIOR TO EFFECTIVE DATE OF DISCHARGE.....
"At its meetings on March 9 and March 23, 1988, the Commissioners adopted the following policy to apply to instances in which one party gives the other party notice of impending separation and the other party takes the initiative of terminating the employment relationship earlier:
(1) The Commission recognized an expectation generally existing in the work place that a party intending to terminate the employment relationship will customarily give two weeks no-tice to the other party.
(2) During such two-week period, early termination of the employment relationship by the party receiving such notice will not change the nature of the separation. The party first initiating the separation will continue to bear the burden of persuasion as to whether the separation was justified; that is, in the case of an involuntary separation, whether the claimant was discharged for misconduct connected with the work or, in the case of a voluntary separation, whether the claimant voluntarily left work without good cause connected with the work.
(3) When more than two weeks' notice of impending separation is given and the party receiving the notice initiates a separation prior to the intended effective date, the nature of the separation, and thus the allocation of the burden of persuasion, will depend on the general circumstances in the case. "
eta: I think we might just be agreeing, but for different reasoning....[:D].....just wanted to show you where I got my original quote, since I didn't cite it well the first time. Sometimes if I do, the forum won't immediately post the message, but states it needs approval. Usually it is when I quote and link.
I have never won an UI case against an employee who we allowed to leave prior to their term date - including TX. That's why we always pay out their notice.
[quote user="dhall111"] I have never won an UI case against an employee who we allowed to leave prior to their term date - including TX. That's why we always pay out their notice. [/quote]
HRforME -- I read that first one wrong. Doh! I thought maybe this was new relative to the copy I printed but they say this has been their method since 1988. OK, so mea culpa but, now having fessed up, I'm going to tell you about my actual experiences in the trenches with this one. I've not had good luck in actually beating these although it's been awhile since we've had one to deal with. The first one I got I lost the initial decision and I appealed it. I lost that one too: they said that because we fired claimant within the notification period, we were the moving party and it was on us to show that the dismissal was motivated by misconduct associated with the work. I have only won this type due to the claimant's own incompetence in representing their interests.
I've had other experiences with investigators and appeal hearing officers ruling in direct opposition to both precedence manual and appelate court rulings.
For example, I'm about 50% on cases in which we dismiss sales people who do not perform according to the standard of the Company. These cases typically involve people with a lengthy period of success and the full range of escalating disciplinary meetings with signed documentation in conjunction with a raft of documented constructive efforts to bring these people back into success. TEC v. Tates 769 S.W. 2d 290 (Tex. App. Amarillo 1989, no writ) applies. Some times appeal number 96-003785-10-031997 (MC 300.40) may also apply. Cases with the exact same particulars get decided in both directions.
To be totally honest, I think best business practice is to pay out the two weeks' notice which is what we do here. Since we don't usually run into this issue, so I don't have any "trenches" experience, just what the appeals manual states. If I had to appeal a decision though, the 1988 statement would be the one that I would use. Sometimes I don't think the appeals officers have ever read the manual. But I have had luck with appealing original decisions -- just not for this reason.