Firing After a Non-Resignation Resignation?

Dear Evil HR Lady (Oh - I do love that title):

I am the general counsel for a small engineering firm in NY, and as such, spend a great deal of my time working with the Human Resources department. Most of the time, it's a kick, but this problem's got even me confounded.

On Friday, one of the HR staffers left early, and from her home, sent an email to her supervisor, the HR manager, stating that something happened at work and that she could not stay in the office any longer.

Her desk is less than 10 feet from her manager's office, and it was likely that her manager (the head of HR) was in her office at the time. She made no effort to seek out either her supervisor, the Director of Operations or anyone else to (1) let them know that there was a problem and (2) that she was leaving early for lunch and would not be returning for the rest of the day. This violated company policy which requires all employees (regardless of status or title), to let their supervisor or a senior manager know in advance if they need to leave the office (advance meaning before actually leaving), unless there is a family emergency or sudden illness.

The HR staffer concluded her email with the following:

"With this, I would like to inform you that I will be officially seeking employment elsewhere. This is not a resignation letter, nor am I providing notice. I would just like to inform you of my decision and be honest with you so that you may plan, as I have always done. I am extremely disappointed and wish this did not have to transpire, as I had previously believed that I had a bright future with [this company]."

Generally speaking, my company does not have a history of summarily terminating individuals who have announce that the would be seeking other employment, but nor does it bargain with employees to get them stay.

The very simple question is, given that this employee has advised the company in writing that she intends to leave, can she be terminated?

My how I love to say this: You can fire anyone at any time for any reason or no reason as long as the reason isn't one protected by law (state or federal) and the employee isn't under a contract. Fire, fire, fire. It warms my little evil heart.

Now, the real question: Should you fire this employee?

First, I have a question for you. What was the "incident" at work? I'm completely in the dark, so I have to guess. Was it being told that she needs to work on her personal hygiene? Was it because she was threatened with some negative consequence because she said she was going to blow the whistle on an illegal activity? Was it because her boss had sexually harrassed her? See, you've got trouble brewing in River City.

If it's one of the above reasons, firing her now could be construed as a violation of law. (Retaliation is a big no-no, and the personal hygiene issue could fall under ADA, depending on cause.) If it was just, "Hey, you don't have what it takes to be promoted to the next level," then you can blissfully fire away. Not to say that she wouldn't initiate a law suit anyway. You can't control that.

What do you gain from terminating her immediately? Unless she's causing problems among other employees, I see the only thing you gain is smug satisfaction. Now, if you routinely terminate people for leaving with only an e-mail, then you're on secure ground. If you don't, I'm going to wonder why she's being singled out.

Duh, you say, it's the non-resignation resignation letter. Yes, yes, that is annoying, and fairly stupid on her part. But, you don't have a habit of terming people because they resign. If you start this now, word will get around. People will stop trusting you/the company, and you'll find people resigning without notice.

True story: I got a call from a sales manager. He was angry that an employee had come to him on a Friday and said, "Here's my laptop and all my company equipment. Today is my last day. I start a new job with a competitor on Monday. Thanks, bye." The manager was LIVID. How dare the employee have so little respect for him as to quit without notice. This was wrong. Could he do anything about it? (Like what, I wanted to ask--fire the guy?)

In the course of our conversation, he admitted that when an employee submitted a resignation letter and provided two weeks notice, if said employee was going to a competitor, he terminated the employee immediately. Hmmm, I said, "And if this person had submitted a two week's notice, wouldn't you have terminated him immediately?" Grudgingly, the manager said yes he would. Then he hung up, feeling kind of sheepish (I hope).

So, what do you gain from terminating this person immediately? A bunch of other employees that say, "Hey, Sally got terminated as soon as she said she was looking for another job. I'll keep everything to myself."

A good manager realizes that sometimes the company can't provide a good career path for everyone. Perhaps in order to truly progress, an employee needs to leave the company and some day might come back. Sure, you probably wouldn't want to take this person back, but you might want to take back another employee who hears about her termination, but doesn't hear about the "incident" (whatever that was), that started this whole mess.

If you decide you just can't stand having her around for a few more months, go ahead and terminate her with severance and have her sign a General Release in exchange for that severance. That may make all of you happy.

Remember, that however you handle an "incident" with an employee needs to be consistent and fair with how you have handled similar incidents in the past and in the future. Whatever you do, make sure you are in compliance with state and federal law. (NY may have lots of protections that federal law does not. I used to do HR in NY, but it was a long time ago, and I have forgotten everything about it.)