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Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
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Experience:  Employment/Labor Law Litigation
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As a consulting firm based in ny but with employees throughout

Customer Question

As a consulting firm based in ny but with employees throughout the us, we inform employees we have an "at will" relationship but have them sign an employment agreement stating that employee must give 2 weeks notice of termination (since the client they are performing the work for requires 2 weeks notice), does this invalidate the "at will" element? If employee is required to give 2 weeks must the employer as well?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Allen M., Esq. replied 1 year ago.
Thank you for your question today, I look forward to assisting you. I bring nearly 20 years of legal experience in various disciplines.

It does not alter the "at will" employment status, though it would be wise to have a statement in that agreement saying "nothing about this agreement is intended to alter the 'at will' employment situation."

Now, requiring two weeks notice of the employee does not impose on the employer the same obligation. That being said, requiring the employee to give two weeks notice will force the employer to pay out that two weeks of notice, even if they wish to have the employee leave immediately after getting notice from them.

If the employer is going to require the notice, the employer can't take advantage of that advanced notice, force the employee to leave immediately (even though the employee didn't actually plan on starting another job or leaving for two weeks) and then not may them for that two weeks.
Customer: replied 1 year ago.
Thank you this is exactly the information I have been looking for. Just a follow up, so by us having an at will disclaimer and requiring 2 weeks notice we can still terminate an employee without cause? And in this situation can we terminate the employee immediately without giving them 2 weeks notice?
Expert:  Allen M., Esq. replied 1 year ago.
Yes, you can. You can terminate without cause, because they are "at will."

You take on no obligation to give two weeks notice by requiring them to give two weeks notice.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 15765
Experience: Employment/Labor Law Litigation
Allen M., Esq. and 6 other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

Just a follow up to this question from last week,


 


So if we leave in the contract a requirement for 2 weeks notice (as required by our client where there work is being performed), can we still terminate at-will, at any time, for any reason? Would we need further language in the employment contract as to under what terms the employment could be terminated? Should we take out the at-will statement entirely or can we leave it in?

Expert:  Allen M., Esq. replied 1 year ago.
Yes, you can still terminate for any reason.

Having the "at will" language in the agreement is important, because it indicates that your intention is not to create any sort of true employment contract beyond the regular "at will" level of agreement.

So yes, leave the language there.
Customer: replied 1 year ago.

Thank you for your response,


 


Also, is there anything further that we need to do agree to give the employee in order to require them giving us 2 weeks notice (i.e. do we have to give them some kind of benefit in order for us to require 2 weeks notice from them?)

Expert:  Allen M., Esq. replied 1 year ago.
If you make accepting a requirement to give two weeks notice as a condition of employment, you need not given them anything additional.

If you start trying to hold vacation payout if they don't given notice, or other such common actions, you have to do an individual determination of the law for each state.
Customer: replied 1 year ago.

Thank you so much for breaking this down!


 


Just verifying. So by them signing the employment agreement and agreeing to its terms, including giving us 2 weeks notice, we can hold them to that 2 week notice requirement? Would we claim breach of the contract if they did not give us 2 weeks?


 


 

Expert:  Allen M., Esq. replied 1 year ago.
Yes, you can hold them to it.

You could claim breach of contract, but your issue will be establishing damages. The more you get into trying to predict damages in a liquidated damages clause, the more problematic it becomes.

In truth, it's probably not ever going to be worth suing over, but you can check each state's laws on vacation and hold that person's vacation if they don't give the two weeks notice (in fact, you can say "you will not be paid out accrued vacation unless you give your two weeks notice, subject to your state"s laws, so that you don't have to research each state until you need to use the clause).

The threat alone should be enough to convince them to give the notice.

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