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LawTalk
LawTalk, Attorney
Category: California Employment Law
Satisfied Customers: 27889
Experience:  I have 30 years of experience in the practice of law, including employment law and discrimination law.
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Can I terminate my employee if she was absent from work for

Customer Question

Can I terminate my employee if she was absent from work for two weeks and posted on FB that she was a former employee of my company and then comes back to work?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  LawTalk replied 1 year ago.

Good morning,

I'm Doug, and I'm very sorry to hear of your situation. My goal is to provide you with excellent service today.

An employee who goes absent from their place of employment for two weeks and write on facebook that they are no longer an employee, if not previously fired for some reason, may be considered to have resigned, and based on that you may pay them only the wages they earned up until the date that they ceased coming to work.

They do not have the right to demand to return to work, and under the law you may refuse to allow that. And, because they have resigned---or you have terminated them based on their no-call, no-show---they will not be eligible for unemployment benefits either.

Despite the fact that she may have been a salary exempt employee, the federal labor law (FLSA) holds that in the week of resignation/termination, you need not pay the employee for any day following their last day. And you need not pay them any salary in any week that they do no work at all.

So, you owe the wages to the last day worked and no additional wages beyond that---based upon your claim that they resigned---and the facebook page is proof of that---presuming that you did not fire them before that.

You may reply back to me using the Continue the Conversation or Reply to Expert link and I will be happy to continue to assist you until I am able to address your concerns, to your satisfaction.

Please remember to rate my service to you when our communication is completed.

I wish you the best in 2013,

Doug

Customer: replied 1 year ago.

Does this apply for New Hampshire DOL law? Plus, do I have to give this employee vacation time that was not taken if she left her employment?

Expert:  LawTalk replied 1 year ago.
Good afternoon,

Yes, this handling of salary exempt employees wages in the ending week of employment is federal law, and applies in every state.

As for the accrued vacation time, the feds don't regulate that. But under NH law, if your company has a written policy that unused vacation will be paid upon termination, then you must do so. However, like most other states who do not force the payment of accrued vacation time on termination or resignation, NH does not and most NH employers specifically have the policy that unused vacation time will not be paid upon termination.

You may reply back to me again, using the Reply to Expert link, if you have additional questions.

I wish you the best in your future,

Doug
Expert:  LawTalk replied 1 year ago.
Good evening,

I wanted to thank you for using JustAnswer, and to inquire whether my answer to you was helpful to your understanding of the law, as regards your question.

Is there anything else that I can assist you with, please feel free to ask. If you do not require further legal information at this time, please feel free to bookmark my profile so you can request me when you do have another question. Here is a link to my profile: http://www.justanswer.com/law/expert-lawtalk/

Thank you very much and take care.

Doug

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