Can You Be Fired If Your Boss Finds Out You're Leaving, Or If You Give Notice?

So you told your boss you might be quitting. Or you gave notice that you're leaving in three months. Can your boss fire you or shorten your notice period? The answer is probably yes.

I assume you don't have a contract saying you can only be fired for cause. Assuming you don't, you're an at-will employee who can be fired for any reason or no reason at all. They can't fire you for an illegal reason, like discrimination, but can fire you for any other reason.

If your boss knows you won't be around much longer, then she can protect herself by looking for a replacement. Once your boss finds out you're leaving or even thinking about leaving, you're probably on your way out. From your boss's perspective, it isn't really fair to your boss to leave her in limbo about your plans. That means she is within her rights to hire someone to replace you and send you on your way.

I suggest you keep your plans to yourself until you are 100% sure. If you dither with the dates, yet telling her you'll be gone eventually, you have alerted her that she'd soon have a vacancy. The better plan is to wait until you've booked the moving vans and sold the house, then give a few weeks of notice.

However, even if you give notice, your boss doesn't have to honor it. You can be fired for giving notice, which is pretty stupid on the boss's part if you ask me. Who would ever give notice if they do this to employees?

To sum it up:

• Your boss doesn't have to wait until you give notice. Once they know you're leaving, replacing you is fair game.
• Your boss doesn't have to let you take back your notice. If you said you were leaving two months ago, then changed your mind, you are probably gone.
• You don't have to call it "notice" or anything specific for it to be official. If you say you're leaving soon, you just quit.
• Your boss can shorten your notice. If you say you're leaving in October, they can say goodbye to you in August. They don't have to let you work out your notice period. You're terminable at-will unless you have a contract saying otherwise. 

My one caveat is if you know of other employees of a different race, age, sex, national origin, or other protected category who were treated differently, then you might have a discrimination case. However, your damages would be limited to your notice period, so that may not be worthwhile pursuing.

Be careful what personal information you share at work. If your employer finds out you're planning on leaving, you may be out the door sooner than you think.

I'm Being Fired! What Do I Do Now?

You're called into a meeting with HR and your boss. You know the axe is falling. Here some do’s and don’ts to consider if you are called into a meeting and fired:

DO'S 

1. Do work as long as you can.

If they are giving you the option to work for a few more weeks or months, do say yes. It's way easier to get a job when you have a job. Take that time to send out resumes and pound the pavement. Just make sure you still do your job while you're there, and don't start copying trade secrets or confidential information. That will just get you into trouble.

2. Do ask about getting your personal items. 

Many people leave their belongings behind. Security or HR might have to accompany you, but do get your stuff. They aren't allowed to keep your belongings. On the other hand, if it's in your work computer, your company phone, a company notebook, or something else they own, it's theirs. They don't have to let you print or copy anything that's in their property.

If it's important, keep it in your briefcase, your purse, or at home so that this doesn't happen. If you've, for instance, been keeping a log of every sexually harassing comment that was made, you may lose it now. That's why you never keep it on your work computer.

3. Do ask about your insurance. 
Are they cutting off your insurance that day, at the end of the month, or later? If you have an upcoming doctor's appointment or surgery, you need to know ahead of time whether or not you'll be listed as covered.

If coverage is getting cut off, it will be reinstated retroactively once you elect COBRA and make your payment. If you paid your share of insurance through the end of the month, remind them. They may extend your insurance at least through the time you've paid, or refund you the difference.

4. If no severance is offered, do ask about it. 
They may offer it if you ask. Don't agree to or ask for any amount on the spot (you're not thinking straight, remember?) You might want to talk to us to see if you have potential claims against them before you decide on an amount. If they do offer severance, ask them to put it in writing. Get legal advice before you agree to anything you don't understand.

5. Do ask if the company has a severance plan or policy.

You'd be surprised how many have written severance plans that don't require a release, yet they try to get you to sign one anyhow. Or they try to throw in a noncompete agreement that's not required.

If you're already entitled to severance without signing anything, then maybe you can negotiate more in exchange for a release or noncompete agreement.

6. Do ask when you'll get your final check.

Some counties and states have deadlines for employers to pay, some do not. Don't assume you'll be paid in the next pay period.

Also, if you're owed commissions, find out if they intend to pay them. If there are deals you've made that are in the pipeline, they may owe you money once they close.

7. Do ask why you're being terminated. 

Here in Florida they don't have to give a reason, but in some states they do. However, if they refuse to give you a reason, or give you a different reason than they give to unemployment or the EEOC, that may help you with your legal claims down the road.

8. If they claim you signed a noncompete or confidentiality agreement, do ask for a copy.

You need to understand what you signed. Many employers don't provide copies when you sign these agreements at the beginning of your employment. But if they want you to comply, they have to give you a copy so you understand your restrictions.

If they won't give a copy, or if you think your agreement might not be enforceable, contact an employee-side employment lawyer to review your options with you.

9. Do ask what co-workers and potential employers will be told.

It's important to know what to say to potential employers. It's also important to make sure the company rumor mill isn't fed with misinformation. Get on the same page with them if you can.

10. If they ask you to resign, say no. 

Unless you're being offered substantial dollars in exchange for a forced resignation, what's your upside? You'll probably be disqualified from getting unemployment. You may accidentally give up some discrimination, whistleblower or other claims.

Some people think it looks better to potential employers to say you resigned, but really, who do you think you're fooling? In this economy, almost nobody resigns without having another job lined up. They'll know something bad happened, so why make it easier on the former employer by quitting?


DON'TS 

1. Don't sign anything. 
You aren't thinking straight. When they shove a severance agreement, disciplinary report or other paperwork in front of you, take a deep breath, and ask for a copy to review. Take a look at it once you've had a chance to calm down.

If there's anything you don't understand, take it to a lawyer to have it reviewed before you sign. You may be giving up rights you shouldn't, or maybe you have some leverage to negotiate for more money.

You especially don't want to accidentally sign a noncompete agreement that limits your ability to work for a year or two, unless you understand it and are getting some substantial dollars for it.

2. Don't yell, curse or make a scene. 
You don't want to burn bridges. You still need these people, as much as you hate them right now. They will be on your resume for many years. They'll have to give references on you.

Plus, if you tick them off they're more likely to challenge your unemployment. They can make your life even more miserable right now, believe it or not. I've known many employees who were fired or laid off and who ended up getting rehired down the road.

3. If you believe they got it wrong, don't argue or beg. 
If they got the wrong person or there's something you can prove is incorrect, you can tell them calmly. However, very few employers will change their minds at this point.

If your proof is at home or is something you need to provide in writing, then wait until you've cooled off, put together your information in a business-like fashion, and send it later.

They may have an appeals or grievance process. Follow it.

4. Don't admit to a crime or wrongdoing.

Sometimes, the employer will lock you in a room with Loss Prevention and say you can't leave unless you sign something admitting that you stole inventory or did something wrong. Don't do it. You're already going to be fired -- don't let them fool you. "Just sign and you'll still have your job," they might say. They're lying. The only question is whether you'll also end up in jail or with a big judgment against you.

If they say you can't leave, open the door and go anyhow. If they block the way, pull out your cell phone or pick up the phone in the room and call 911. If you don't have a phone and they block your way, demand to be allowed out. If they still won't let you go, scream at the top of your lungs for help. That's the one time I recommend making a scene. (Don't touch anyone though). Eventually you will be allowed out of the room. Call 911 the second you leave the premises and tell the police what happened. Then call us (or a criminal defense attorney if you need one) and get advice.

But whatever you do, don't sign something admitting to a crime. Ever.

5. Don't demand to say goodbye. 

You don't have the right to have a big farewell scene with co-workers. You're upset and will probably embarrass yourself. If co-workers approach you right after you've been fired, stay calm. Don't badmouth the company or the boss. Leave with class and you may keep the doors open to come back someday.


While being fired is right up there with a death in the family as one of the most stressful things that can happen to you, with lots of self-control and a little preparation, you may help ease your transition a bit. If you do have any potential claims against the company, you hopefully won't have done anything to damage your case. More importantly, you won't have burned any bridges.

I Think I'm About To Be Fired! What Do I Do?

With layoffs happening in droves right now, many people are wondering what to do if the axe falls. While this is a stressful time, it’s also an opportunity to prepare. Here are some things to think about if you are about to be fired or laid off:

• Potential claims: If you think you’re being singled out due to race, age, sex or national origin, start writing down the ways you believe you’ve been treated differently. If you are objecting to or refusing to participate in something illegal, make sure you document it. A discrimination or whistleblower claim might give you leverage to negotiate a better severance package. Now might be a good time to have a strategy session with an employee-side employment lawyer about how to document your case.
• Look for a job: No matter why you may lose your job, polish your resume. It's way easier to get a job if you have a job. Don't procrastinate.
• Signing termination papers and severance agreements: If your employer hands you a resignation or termination paper to sign and you’re not getting any severance, take a pass. If you will receive severance, be careful before signing an agreement. You may wind up agreeing to something costing you more than the amount of your severance, such as a requirement to turn down a job offer from a competitor. If the employer wants you to sign a non-compete clause and the restriction is longer than the number of weeks of severance, it’s probably not worth signing unless you’re going into an entirely new field. If you don’t understand everything in your severance agreement, have a lawyer review it with you to discuss claims you may have that could be potential leverage that you have that might get you a better package, and any changes to the agreement language that are necessary. 
• Exit interviews: Some companies say you’ll need to give an exit interview after you’ve been fired. That’s because firms use exit interviews to cover themselves in case departing employees later claim discrimination or something illegal. Here’s the truth about an exit interview: Your employer can’t make you go to one. I’d suggest not giving an exit interview unless the firm offers to pay you the equivalent of your salary for the time it takes to do one. The trouble with exit interviews is that anything you say can come back to bite you later. I’ve seen people who were accused of making threats or engaging in inappropriate behavior during their exit interviews. If you do have the session, avoid the temptation to blast your supervisors or complain about their incompetence or mismanagement. Remember: These are the people who will be giving references to potential employers. So no matter what you think of them, hold your tongue. It could serve you well in the future. 
• Gather your documents: Start gathering documentation of anything they owe you (commissions, bonuses, contracts, etc.), proof of any deals still in the pipeline you think you may be entitled to be paid on after you leave, copies of all employment agreements, confidentiality agreements and noncompete agreements you signed, your performance reviews, evaluations, commendations, awards, write-ups, disciplines, recommendation letters -- anything you can get about your performance, bad or good anything else you think might be useful to a lawyer or to unemployment. Copy any thank you notes, letters or great comments you’ve received from your boss; take any plaques, certificates and awards home (in case you’ll be asked to leave abruptly) and get a copy of your personnel file if you can, as well as the employee handbook and benefits policies. Be discreet, though. Don’t empty out your office in one day. If you do, your employer may say you quit. 

Hopefully you'll never be in the situation of losing your job, but be ready if you think it's about to happen. When the axe falls, you'll be too stunned to act rationally. Next week I'll talk about what to do during that termination meeting and right after.

 

Will The Reason For My Termination Turn Up In A Background Check?

A reader left this question in the comments to my post Loss Prevention is Lying to You.

Hey Donna, would you know if for example LP fired a person from a company, would other companies that person applies for be able to see everything that happened between him and the company he got fired from?

One of the very common statements I hear is, "I know they aren't allowed to say that in a reference." This statement usually comes from someone who is shocked (shocked!) to find out that their former employer gave them a very bad reference. Many people think employers can only give out dates of employment and job titles.

That's dead wrong. At least here in Florida, an employer can say pretty much any darned thing they want in a reference. There's a statute saying that employers can't be sued for giving truthful information in a reference here and in many other states.

What does that mean? It means that employers can trash you at will and may not be breaking the law. Here's what you need to know:

Employers can't defame you. That means they can't give out factually false information to potential employers. While they can probably get away with saying stuff like, "She wasn't a good fit," or "He didn't get along with management," or "Her performance wasn't up to par," they can't say, "He turned out to be a pedophile," or "She embezzled from us." Opinion is okay but false facts aren't. And no, they can't say, "In my opinion, she embezzled from us," and get away with it if that's false.

Truth is always a defense. Saying, "A coworker complained about sexual harassment and we had to let her go," if true, may not cross a line even if you didn't sexually harass anyone, but this is probably borderline and would depend on the situation.

Retaliation may (or may not) be illegal. Sometimes, employees say to me, but I know they're retaliating. I have to ask: "Retaliating for what?" Some people don't seem to understand the concept. Others think if they complain about bullying, unprofessionalism, or bad boss behavior they're protected. They aren't. However, if you report or object to something illegal like discrimination, failure to pay wages, safety violations, FMLA violations, or sexual harassment, then you're probably legally protected against retaliation. This means an employer can't slam you in references just to get back at you for, say, filing with EEOC.

Public records: Generally, your personnel file or loss prevention file isn't a public record, and your former employer isn't going to part with it or give a copy to a potential employer. Exceptions exist for many government entities that have to make records available to the public. Also, some publicly held corporations may have to disclose certain information to shareholders. In addition to this, if you're applying for a job in law enforcement, many times the police department will investigate by asking for a copy of your personnel file for review (and most employers will cooperate).

Legal proceedings: EEOC filings aren't public record, but lawsuits are. If you sued your former employer and your personnel file or testimony came in about your termination, then your new employer or a potential employer can get this by pulling the court file.

Industry filings: Some industries, like securities, have filings that include reason for termination. Those forms, once filed, can be pulled by potential employers in the industry.

These are all reasons why, if I'm negotiating a severance package or settlement of an employment law case, I ask for either an agreement the employer won't say negative things about you to anyone, or at least for neutral references, which means they can give dates of employment and job title only. If you left on bad terms, you might want to talk to an employment lawyer about getting an agreement that our former employer won't say bad things about you.

Some employers have a policy of only giving out neutral references, but if they violate their own policy you don't necessarily have a lawsuit against them for doing so. Many potential employers will ignore your request that they call a central reference number or HR and will call your former supervisor directly, in which case almost anything could happen.

Is My Noncompete Enforceable If I'm Fired Without Cause? Don't assume your non-competition obligations end when you're fired

Wow!

When I wrote an article on How Do I Get Out Of My Noncompete Agreement?, I found out that AOL Jobs readers have lots of questions about noncompetes, and I don't blame you. I get people in my law practice asking me questions on non-competition agreements every week. That's because most people don't even realize they've signed something saying they can't work for a competitor for a year or two after they left, or they thought (wrongly) that a non-competition provision couldn't be enforced. I'm going to answer some reader questions This week, I answer a reader question: Is My Noncompete Enforceable If I'm Fired Without Cause? Read my answer on AOL Jobs here.



Please don't forget that the ABA Blawg 100 is asking for your votes for your favorite blog in the Labor and Employment category. If you think this blog is worthy, I continue to need your vote. Go to the ABA website here. It takes about 30 seconds to register. Then go to the Labor & Employment category. Find Screw You Guys, I'm Going Home. Look to the left and you'll see a button that says, "Vote Now." Click it. You're done. The polls shut down at close of business today. If you have trouble voting or questions about anything else, please see the ABA's Blawg 100 FAQ.

HR Wants To Meet! What Do I Do?

You get the call or the email and your heart sinks to your feet. HR wants to meet with you. Unless you think a promotion or raise is in the works, a meeting with HR is usually something employees dread. But if you do some basic preparation, you can be ready for anything.

Read my article in AOL Jobs to find out some things HR may want to meet with you about, and what you should do.

Why Did The Lawyer Put This In My Employment Contract?: The Termination Clause

In yet another attempt to explain the legalese that lurks in your employment contracts, today I'll talk about some of the language you might see in the contract you sign when you're first hired: the termination clause. It's something you don't really want to think about when you're all excited about a new job offer, but it's almost always in there.

You're most likely to see something like this, if not in a contract or offer letter, then in your handbook:

You agree and understand that your employment is at-will.

Your eyes probably glazed over and you didn't think about this. But the next time you are handed a contract to sign that says this, I suggest you think about it seriously. What this means is that you agree you can be terminated for any reason or no reason at all. If your new boss is in a bad mood three days after you start, even if you gave up a steady job of 5 or 10 years to take this new offer, you're out of there with no severance at all. Especially if you're moving, leaving another job, or are a hot commodity (you have an expertise, a degree, experience or something else that makes you able to pick and choose), I suggest you try to negotiate a better clause than this one.

A slightly more acceptable clause:

You agree that the Company may terminate your employment by giving 90 days' notice. If the termination is for cause, the Company may terminate your employment without notice.

 At least in this one, the company has to give you some notice, or pay out the notice period as severance. The clause might have more or less notice, depending on what you negotiated, but the notice is important. It's also important to define what "cause" for termination will be. If you leave it up to the company to determine whether or not your performance is up to par with no way to measure, then you might as well be at-will.

What's concerning about a clause like this one is sometimes people spend lots of time negotiating the length of the agreement. Say you negotiate a contract with a one year term, with automatic renewals at the end. You think you've assured you have something steady for at least a year. But this clause completely negates that one year. Whatever notice the company puts in here that they have to give, that's likely how much they'll have to pay out.

Even better would be:

This agreement may only be terminated for cause. In the event of termination for cause, the company shall give notice of the alleged cause and give you 30 days to cure the problem before termination.

You still need to worry about defining what constitutes cause, but with this clause you have a chance to fix things if the company thinks you're messing up. If they fire you for no cause, they have to pay out the rest of the contract. That's great if you have lots of time left on it, but if you don't, you might have been better off with the provision above. Still, if I have my druthers, I'll pick this one over that. At least you'll have time to prove yourself, so your move won't be a complete hardship.

If you have lots of leverage, or if the employer wants you bad enough, you might get lucky and get a clause like this:

In the event of termination, the company will pay you 6 months of severance.

Notice it says nothing about cause or no cause. With this one, it doesn't matter how much you mess up. As long as you haven't breached the contract in some way, the employer has to pay out your severance no matter the reason for termination. This kind of clause is especially good if you have a noncompete. If you have to stay out of the industry 6 months, they should pay you 6 months so you can survive. If they want you to stay out longer, you should try to negotiate a longer payout.

Even though you don't want to think about getting fired or laid off, you have to if you want to survive in this economy. If you have any leverage at all to negotiate a better contract, the termination clause is one of the most important clauses to get right.