Employment Termination Notice Periods – Are They Enforceable? (Part 2)

My last post addressed the enforceability of employment termination notice periods from the perspective of the employer.  Unfortunately for the employer, when an employee quits without providing the required notice, there is not much the employer can do beyond prohibiting the employee from acting contrary to the interests of the employer during the required notice period.  Is an employee who is fired without being given the required prior notice in a similar position?

The answer depends on what effect a termination of the employee’s employment has on their right to receive post-employment compensation.  The Georgia appellate courts have held that the failure of an employer to give the required notice of termination to an employee entitles the employee to sue the employer for breach of contract.  But the employee’s only remedy is payment of the compensation and other benefits that would have been paid or provided to them during the required notice period.  The employee cannot get their job back.  However, such a breach of contract by the employer will void any provision in the employment agreement that restricts the right of the employee to receive compensation they have already earned after their employment terminates.

In one case, the Georgia Court of Appeals refused to enforce a provision in an employment agreement that limited the improperly terminated employee’s right to receive commissions for sales made to those that were received by the employer within 10 days after the termination of the employee’s employment.  In another case, the Court of Appeals refused to enforce a provision that reduced the amount of commissions the improperly terminated employee was entitled to receive after their employment was terminated.  Any attempt to avoid the payment of a bonus or other compensation that involves the improper termination of an employee will also fail.

Since an employer will have to pay an employee the compensation and provide the benefits the employee would have been entitled to receive during any required termination notice period, there is no reason not to take advantage of such a period to do what can be done to make the employee’s departure as painless as possible.  Where there are contractual provisions that restrict an employee’s right to receive compensation they have already earned after their employment terminates, it is imperative that any required notice of termination be properly given.  If it is not, those provisions will not be enforceable against the employee.

 

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