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Employment Law Tip: Put It in Writing Or Face the Consequences
Many employers cite employees for violations of "unwritten" company policies that are enforced but not clearly set out in an employee handbook or other well-publicized document. This can be a big mistake.
Your supervisors may feel comfortable telling employees that "this is a long-standing unwritten rule" or "just the way things have always been done," but that probably won't cut it in court. If you have no document to point to, it
is very easy for employees to claim that they've been treated in a discriminatory manner because of their race, sex, age, religion, disability, or other protected status.
To be safe, make sure everyone is on the same page literally with your policies. Write them down and distribute them in an employee handbook or some other format you can easily point to in the event of a dispute.
Employees should sign and return forms acknowledging that they have received and read the handbook, and that they understand the handbook does not constitute a binding contract (except for your at-will policy).
If you change any of your policies, make sure the changes are equally well-documented and publicized.
5/17/2007 © Employer Resource Institute.
And now, some questions ...
FROM NEVADA
If an employee submits her two week notice, are we required to pay that two weeks if we decide to let the employee go immediately?
Nevada is an "employment-at-will" state. This means that either the employer or the employee may end the employment relationship without giving either notice or a reason, unless a law or agreement provides otherwise. For instance, a
collective bargaining agreement, individual employment agreement, or personnel policy can create a different type of employment relationship, and various federal and state laws (e.g., antidiscrimination laws) restrict an employer's ability
to terminate an employee at will. However, provided the employee in question is an at-will employee, the company is free to terminate his or her employment immediately.
If the employee has complained of discrimination, harassment, or otherwise engaged in protected activity, terminating his or her employment immediately could be viewed as retaliation. Likewise, treating this employee differently
than other similarly situated employees could give rise to a claim of discrimination. If there are concerns, you might want to consult an employment attorney before moving to terminate the employee.
Provided this individual is an at-will employee, the company has three options, including:
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Accept the resignation and let the employee work out the 2 week period.
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Tell the employee he or she does not need to come to work, but will be paid through the 2 week period.
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Tell the employee the company has decided to accept the resignation effective immediately.
If the company decides to terminate the employee immediately without paying him or her for the two week notice period, the employee may be successful in claiming unemployment compensation benefits for the two week period.
Unemployment benefits would then be charged against the employer's experience rating. For this reason and to avoid other potential problems, employers often pay employees for the two weeks but don't require them to work during the period.
Under Nevada law, employees who quit must be paid their final wages the earlier of the next regularly scheduled payday or 7 days. Workers that are terminated must be paid immediately. In addition, while there is no Nevada law or
court case mandating that employers pay employees for unused vacation, the 9th Circuit recently decided in a Nevada case that terminated workers must be paid for accrued, unused vacation time upon termination (Local Joint Executive Board
of Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc., No. 98-17065 (04/11/01)).
If you are in Arizona:
Arizona employers must pay someone who has been terminated within three of the employees' working days or the next payday, whichever is sooner. School districts may pay wages due the employee within ten calendar days from the date of
discharge. Employees who quit are to be paid on the regular payday for the pay period during which the termination occurred.
If you are in California
California employers must pay an employee who has quit and given 72 hours notice the final wages (including accrued but unused vacation on the last day of work.) If the employee does not give 72 hours notice, the employer has 72 hours in
which to prepare and mail the final wages. Workers who are terminated must be paid all wages included accrued but unused vacation immediately.
Answer to our quiz:
The third answer is the correct one:
George may require all employees to work on Memorial Day and he need not pay any holiday premium.
How did you do?
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