During the pandemic, many workers came to enjoy the flexibility and freedom of working from home. However, employees have no inherent right to choose where they work. In the absence of clear contractual language or perhaps an established practice, this is a decision the employer gets to make.
If an employer wants to allow remote work on a trial basis, has previously been lax about who and how they permit remote work or flexible hours, or simply wants to forestall confusion, they would be wise to introduce a term concretely underlining that working arrangements are solely at their discretion.
Since the early days of vaccine policies, we have argued that an employer, in most circumstances, will have a right to require employees be vaccinated against COVID-19 as a condition of their employment, whether or not the employee agrees and whether or not that is written into the contract. This position has now been adopted by many employers across the country.
Even though many employers likely already have the implied right to require vaccinations as a condition of employment, there can still be a benefit to writing this fact directly in the contract. Doing so could have the benefit of avoiding unnecessary legal fees and grief.
Now, what happens when there is no interest in preserving the relationship and the employee is intent upon leaving?
Employees with a flair for the dramatic may be tempted to slap a letter of resignation on their boss’s desk, state something regrettable and storm out the door. The less intrepid might daydream about doing that, but instead just not show up for their next shift. This might be cathartic, but it would also be short-sighted.
Putting aside the fact that the employee may still wish a reference or a work connection in the future, they also have a legal obligation to provide their employers with notice of their resignation.
Even if the contract says nothing about the employee giving notice, it is still an implied legal term that the employee must provide the employer a reasonable amount of advance notice that they will be leaving and sufficient time for the employer to look for a replacement. Contrary to popular misconception, this is seldom as short as two weeks.
The truth is that, despite having the right to do so, employers rarely sue employees who leave without adequate notice. Still, it is a clear legal obligation that employees have and it is easily fulfilled. No employee would want to be the outlier who gets sued for skipping a few weeks or even months of work.
Employers, too, can be too quick to interpret resignations done in anger as the real thing.
Employment law requires that for a resignation to be legally effective, it must be clear, unequivocal and voluntary. A worker shouting something about not coming back and running out the door will most likely not meet this test. There are many cases where employees have been allowed to take back their “resignation” after cooling down and thinking it over. If the employer then stops paying them and allowing them back into the workplace, the employee would be entitled to full dismissal damages.
The less theatrical, but more prudent response to an employee who announces they’re quitting is to ask them to put it in writing with a defined final day.
Once a resigning employee has worked their last day, they must not be allowed to continue working. If they do, a court could conclude the resignation was repudiated, and both parties will be back where they started.
You will have noticed a trend: The best way to revive or end an employment relationship is not the way that provides a good story afterwards.
It is boring advice, but, if nothing else, the chaos of the past 18 months has hopefully taught us to appreciate the value of careful, methodical and reasoned changes.
