Does an Employer Have to Provide Notice of Termination?
A notice of termination is an official, written notification from your employer that you’re being laid off or fired from your current position. Reasons for termination can vary from gross misconduct, tardiness, and insubordination to layoffs, corporate closures, or downsizing.
But what if your soon-to-be-former employer didn’t provide you with a written notification? You may be wondering if it’s legal to terminate your employment without official documentation. The answer, as we’ll see in a moment, is: “Yes – most of the time.”
Does an Employer Have to Provide Notice of Termination?
The majority of American workers are “at-will employees.” That means that the employer-employee relationship can end for any reason (or no reason) as long as the employee is not being fired for discriminatory reasons such as race, gender, or sexual orientation, or is not covered by an employment contract.
For employees, being hired at-will means that they can quit or leave at any time, giving two weeks’ notice or no notice at all.
For an employer, it means that virtually any reason for termination – from poor job performance to company restructuring to the whims of upper management – is acceptable, as long as they are not legally defined as discriminatory, and the employee is not protected by a contract or union agreement. There is no federal law that requires a company to issue any sort of warning or notification of termination.
That said, many employers do still provide a termination notice, even though no law necessitates it. In fact, during layoffs, employers will often pay employees through the pay period, or even provide them with severance. They may even choose to so for fired employees, too.
Why do employers provide termination notices and severance, if they’re not legally required to? Companies are motivated by a variety of reasons, including compassion and tradition, as well as the desire to avoid lawsuits from former employees.
Beyond that, if the termination or layoff is motivated by individual fit or performance issues, and not larger market factors that threaten the company’s survival, the employer wants to maintain a reputation as a fair place to work.
Employers have a brand like any other company, and they want it to be a positive one. If you had a choice between working for an organization that provides notice and severance, as opposed to one that drops workers without warning, explanation, or compensation, your decision would be pretty easy to make.
What Is Wrongful Termination?
So, lack of notice of termination in and of itself is likely not against the law. But, there are circumstances under which a termination is illegal. If you lose your job because of the following reasons, you may have been wrongfully terminated:
- Breach of contract
- Constructive discharge
- Employee asked to commit an illegal act
- Company policy is violated
- Public policy is violated
If you believe one of these situations applies, you may have legal recourse. It’s best to consult an employment attorney as soon as possible. In most cases, private-sector employees have 180 days to file a complaint with the Equal Employment Opportunity Commission in cases of wrongful termination based on discrimination, and 90 days after that to file a lawsuit in civil court. Waiting may run out the statue of limitations, preventing you from bringing future lawsuits.
When Termination Notice Is Required
The Fair Labor Standards Act (FLSA) has no requirements that a company must give notice to an employee prior to a termination or layoff.
However, if an employee is terminated while under contract and is a part of a union or collective bargaining agreement, employers are required to give notice of termination. In some cases, employers are required to give advance notice on account of mass layoffs, plant closure, or other big corporate closures.
When an employee is terminated or laid off, there are no regulations requiring employers to give advance notice to the employee unless the employee is covered by an individual contract with their employer or employees covered by a union/collective bargaining agreement.
As a courtesy, some employers will give a notice of termination that lists the date an employee’s contract will end, but this varies from employer to employer and is not a federal requirement.
Required Termination-Related Notifications
Although some employers choose to issue termination notices, federal laws do not require any sort of written document explaining the actual reason for termination to an employee.
The only termination-related notifications required by the government are enforced by the Consolidated Omnibus Benefits Reconciliation Act (COBRA) and the Worker Adjustment and Retraining Notification Act (WARN).
COBRA protects the rights for health benefits continuation. Workers and their families that lose their health benefits due to unemployment or other reasons can elect to receive group health benefits for different periods of time. The intent behind COBRA is that an employee (and anyone else in employee's family covered by the employer-provided insurance) will be able to have health insurance while looking for a new position. Americans are eligible for these health benefits on account of many circumstances such as job loss, reduction in employment hours, career transition, death, divorce, and other reasons.
The WARN Act provides for notice to workers prior to layoff. The WARN Act protects employees and their families by enforcing employers with more than 100 employees to provide notice 60 days in advance of covered plant closings and covered mass layoffs.
Also, some states may have requirements for employee notification prior to termination or layoff. Check with your state department of labor for regulations.
The information contained in this article is not legal advice and is not a substitute for such advice. State and federal laws change frequently, and the information in this article may not reflect your own state’s laws or the most recent changes to the law.