Human Resource Blog

This is a tough situation. The best way to handle it is to address the employees performance issues, not her age or injuries. Establish specific, measurable, objective performance criteria for all your food servers. For example, you might establish a policy on breakage (of glassware) or product waste (as when she drops trays of food or drinks.) Advise every food server of the new policy regarding breakage or waste. Maybe any employee who breaks more than $10 worth of glassware per month or wastes food with a retail value over $20 per month will be written up. (Making it one or the other should be enough. Both would probably be overkill.) After three write ups, the employee is terminated. Just be sure you enforce this policy uniformly with employees of all ages.

This is a sad situation and if you have another job (such as hostess) that this employee is qualified to do, moving her into that position would be the kindest thing. Otherwise, you may not want to contest her unemployment, since you indicate that she is not intentionally dropping trays.

Yes, the employee in Pensylvania has tons of rights. (The right to remain silent, free speech, the right to bear arms…) But being paid for the two weeks is not one of them.

In every state (yes, even California) an employer has the legal right to terminate an employee who gives notice. The employer must pay the worker for all hours worked. However, there is no obligation to pay the employee for the two weeks he or she might have worked, if they were given the chance.

In some industries (particularly sales and marketing) it is common for the employer to release the worker early, but still pay the salary for the final two weeks. However, there is not any legal requirement in Pennsylvania for the employer to do so. This is strictly a matter of company policy.

Employees giving notice should be aware that they may not be permitted to work out the notice, and that the employer is under no obligation to pay them for that time, if they do not work it. The good news for the employee: in some cases, a terminated worker is eligible for unemployment, while a worker who quit might not be.

No, the employee is not entitled to payment under these circumstances. Under Illinois law, an employee must be paid at termination for any unused vacation time earned under any employment agreement, contract or policy. Usually, employers need not pay workers for any vacation time that the employee would not have been entitled to use, on his or her final day of employment.

Example: Joe\’s company has a firm rule that employees are not entitled to use vacation time until their 1 year annivarsary. Joe quits one day before that. Joe is not entitled to any vacation pay, because he was not eligible for vacation on his last day of work. Even if the employer, for ease of accounting, tablulates accrued vacation by the week, and Joe\’s pay stub shows accrued vacation, he is not entitled to payment for it.

Many employers differentiate between accrued vacation and earned vacation. An employee can accrue vacation time that he or she has not yet earned, and is therefore not eligible to take. In your example, the vacation time is accrued but not earned.

The second question is more problematic. This is a grey area under Illinois law. Most Illinois employers interpret the law to be that employees are entitled to payment for any earned vacation, even if they quit without notice. Following that policy is probably the safest course. An employer who had a written policy (signed by the employee) stating that any employee who quit with less than 2 weeks notice forfeit his or her vacation pay, might — we stress might — be able to make a case for it in court. Only the employer can decide if this is worth the potential court battle.

Here is what we would tell your friend Wendy: The first thing is to decide if this is a discrimination complaint, or just a boss who is a jerk. If Wendy was the target of abusive and threatening behavior becuase she is female, or due to her race, color, religion, ethnic group, age (over 40), disability, pregnancy etc. then she was actually filing a discrimination complaint with HR. It is not appropriate for the company to punish her by reassigning her. (However, if the reassignment would have happened anyway, that is entirely legal.) Remember that when an employer treats a worker in one class differently (i.e. the boss threatens women but not men) that is discrimination, regardless of the motivation.

It is also illegal for companies to retaliate against workers who file complaints of discrimination in good faith. Retaliation is simply a negative job action taken against an employee who complains of discrimination. Reassigning an employee, reducing the number of people who report to her and ostrasizing her are all forms of retaliation.

If Wendy feels that this is a discrimination situation, and HR has not addressed it, the next step would be to file a formal complaint of discrimination and retaliation with the EEOC. If Wendy is experencing retaliation, the best move is to keep her job if at all possible. The EEOC will still investigate the case, even if the working conditions become impossible for Wendy.

On the other hand, it is possible that Wendys boss is just a jerk, and he is treating her this way for a reason unrelated to discrimination. Many employers would not put up with this behavior from a supervisor, and frankly, it is disappointing that the state of North Carolina would. Wendy should definitely bring her boss current conduct to the attention of the HR department, letting them know that she has been ostracized and reassigned due to her past complaint.

Now on to her second question. Yes, an employer in North Carolina can fire a worker for any reason, including giving notice. Whether or not this will happen in Wendys case, is up to the whim of her manager — and we already know that he is a jerk. If Wendy quits, she will probably not be eligible for unemployment. If she gives notice and her boss fires her that very day, she may qualify for unemployment. But, there is a real possibility that her boss will simply make working conditions even more intolerable for her after she gives notice, forcing her to leave early. That would make her ineligible for unemployment benefits, in most cases.

Most employees in this situation would not give 2 months notice. If the problem could not be solved by HR, (and/or the EEOC) they would give a maximum of 2 weeks notice, and be prepared to be escorted from the building immediately after giving notice.

Yes. FMLA allows employees to take up to 12 weeks of unpaid leave for a variety of reasons. An employee who takes 12 weeks and one day can be terminated.

Normally, the employee should be sent a certified letter stating that if they do not return to work on October 1 (or other date) they will be terminated. Ideally, if the employees FMLA leave ends on October 1, this letter would arrive a week or two in advance. However, if the deadline has already elapsed, the employer would still be wise to send a letter, giving the worker at least a weeks notice that they must return to work. If the employee has been on FMLA leave due to their own serious health condition, the employer can legitimately require that they furnish a doctors release showing they are healthy enough to return to work.