Help me figure out my obligations in notice-giving and moving to a new job.

May 5, 2006 9:39 AM

My employment agreement specifies a mutual notice-giving of 30 days between myself and an employer should either of us wish me to move on, but Virginia is an at-will state. How enforceable is the agreement from either direction? I fear that my employer is putting me at a disadvantage with respect to my moving on (It's hard to find potential future employers who will accept 30 days' delay on the start date) that it might end up they won't be held accountable to if they should decide to give me the air. How do I find out if this agreement is at all enforceable?

This is a set of related questions about a personally specific case of employment law in the U.S.

I'm asking it here because while there is related discussion in other ask.metafilter.com questions, nothing is specifically applicable. Also, this answer is not too urgent. I have a job. I'm looking for other work, but casually and have no open offers at the moment.

Summary:
- I signed an employment agreement upon accepting the position that specifies 30 days' notice, either if I decide to leave the company or they decide to fire me/lay me off. At the time, this seemed like a frill - since I'd been laid off by another company within the year.
- Virginia (where the company is based) is an at-will state. Specifically in what legal interpretations and summaries I could find online for Virginia, it seems that this kind of clause in a contract (note that I don't even know if the employment agreement qualifies as a contract per se) is unenforceable because both a) my company doesn't specify exact cause for potential termination and b) the employment duration is not specified as an actual duration of time.
- The company handbook states that all employment with the company is at-will. I don't think (but need to double-check) that the handbook contains a statement that keeps it from also being a "contract".
- To complicate the situation further, I do most of my actual work in Maryland, and I live in Maryland. Some of the reading I've been doing around the net seems to suggest that this may also matter with respect to interpretation of the law/employment agreement.

It's my impression that my employer is not interested in going to court and would probably be fine with working with me over a minimal notice period if I found another job, but I also want to be prepared in case things did get nasty.

Questions: Is this something that's clear enough to legally diagnose? Should I instead go to a lawyer to find out more about employment law in this specific case? In which state should I seek out this lawyer?

Final question: If for some reason the 30 days' notice is something that could be enforceable, might I be able to say, send them an amendment that would change or cut down this period of time?

posted by kalessin to law & government (14 comments total)

The "Employment Agreement" you signed sounds like an enforceable contract. There's nothing unreasonable about it. In exchange for you giving up the freedom to leave on a whim, you get the security of 30 days' notice if you get fired. That's called quid-pro-quo, aka "consideration" in contract terms.

You can't just "send them an amendment" changing the terms. They would also have to agree to it, which means it would have to be signed by someone with the authority to do so.
posted by MrZero at 10:02 AM on May 5, 2006

If you leave without 30 days notice, you're in breach of your contract. Chances are the contract specifies what the penalty for breack of the contract is. The fact that employment is at will means that the employment relationship can be termianted for any reason, or no reason - as long as that reason is not otherwise prohibited (i.e. it isn't becuase of your age, sex, etc.). If your contract specifies some other type of relationship - that you can only be terminated for cause - that has altered the at will relationship.

If you find another job, you might want to just have a discussion with your employer about leaving earlier. Or, you might want your attorney to have such a discussion. Depends on your relationship with your employer.

{this is not legal advice. Legal advice: get a lawyer}
posted by dpx.mfx at 10:15 AM on May 5, 2006

Do you have/can you accumulate leave time? I would think if you gave notice, you'd only have to work 20 days (four weeks, it wouldn't be thirty work days, right?) minus any leave time you have to your credit. I'm just being crafty, I really don't know.
posted by rainbaby at 10:20 AM on May 5, 2006

What would they do to you if you didn't give them 30 days notice? Unless you get paid up front, or unless your presence directly impacts how much money they take in on a daily basis, I wouldn't sweat it. I doubt most companies would bother suing someone just because they left a couple of weeks earlier than they had agreed to.
posted by tadellin at 10:54 AM on May 5, 2006

I can't believe that any company would give you another 30 days of employment if they fired you. So why should you give them 30 days? Standard is two weeks (10 days). What would you lose if you didnt' give them 30 days?
posted by misanthropicsarah at 11:09 AM on May 5, 2006

Can you post a like to the Virginia sources you consulted?

Without seeing the sources, it strikes me that you've likely misread them. Generally speaking, "at will" laws are designed such that they are always subordinate to the terms of any explicit agreement between employer and employee.

Your agreement with the company is very likely to trump the employee handbook for (among other things) the reason you say -- well-drafted employee handbooks always disclaim any contractual status.
posted by MattD at 11:18 AM on May 5, 2006

If things got nasty would they want you hanging around for 30 days?
posted by biffa at 11:19 AM on May 5, 2006

I can't believe that any company would give you another 30 days of employment if they fired you. So why should you give them 30 days? Standard is two weeks (10 days). What would you lose if you didnt' give them 30 days?

No offense, but this is terrible advice.

By the terms of the contract, kalessin is entitled to 30 days. Although that will probably not be 30 days of actually work, the employer will give a minimum of 30 days' salary.

Why should kalessin give 30 days? Because that's what the contract requires. What would he lose? Well, that depends upon the terms of the contract. I'm sure it's in there somewhere.
posted by MrZero at 11:24 AM on May 5, 2006

Depending on your line of work, telling your new job you can't start for 30 days isn't that unheard of. I would couch it as -- I have an agreement with my current employer to give 30 days notice and I am bound to keep my agreements if they want to hold me for the entire 30 days. If they release me from the obligation, I'd be happy to start sooner.

This is different from situations I've been in where you're walked out the second you give notice [be it 2 weeks or a month]. You still get paid for the term, but they don't want you around with your short-timer's disease.
posted by birdherder at 12:23 PM on May 5, 2006

I agree with birdherder - if you're valuable enough to your new employer, they will understand and work with the notice period.

Also, assuming there's goodwill all around, I would expect that both employers would show flexibility (unless they were bitter competitors). Resign with grace, help interview your replacement, help pave a smooth transition to the new person, and your current employer should be grateful and accomodating.
posted by Artful Codger at 2:37 PM on May 5, 2006

I asked my Virginia employment lawyer wife about your question and her advice was "talk to a lawyer." She did offer that in general an employement agreement would override the at will doctrine. They could theoretically seek damages if you don't hold up your end of the deal. Then there was a lot of if/then/else mumbo jumbo, but I tuned out.

I do know that a half hour with a qualified labor attorney would be like $100 and would give you definate answers. That would be what I'd do.
posted by Lame_username at 5:37 PM on May 5, 2006

Can you schedule two weeks of vacation then give 30 days notice, so it's really just two weeks notice? You might find that when you do that, the powers that be are quite happy to let you go in two weeks...
posted by plinth at 9:01 PM on May 5, 2006

Thanks to all who expressed opinions. I marked Lame_username's answer best (thank you!), because I think it's probably closest to the truth (if I ended up in a contentious situation). It also gave me a good estimate on how long I'd need with a lawyer to get the answers I need. Finally, it helped (as did other answers) me think about the priorities of the things I need to talk about with an employment lawyer:
- Find out if the employment agreement serves as an enforceable contract.
- Find out if the employees' handbook serves as an enforceable contract.
- Find out if the 30 days is enforceable against the employer.
- Find out if the 30 days is enforceable against me.
- Find out if the 30 days is meaningfully mutual in Virginia law.
- Find out where (MD/VA) the law would be interpreted.

If it helps all of you, I have serious questions whether my company would be able to support paying me 30 days for non-billable work. I think that alone would help me be able to negotiate a sooner departure, on top of which I think I have a fair bit of mutual trust with the owners of the company. I think it will work out okay, even if I do talk with a lawyer to try to figure out what my real obligations are.

For MattD, one link was at laywers.com (scroll down to Employment - At Will). Now I cannot find the primary one I was thinking of when I wrote about it in the OP that talked about both requiring an employment contract to specify a term of service and provide explicit termination terms (i.e. overriding normal legal reasons for termination) before it would be enforceable over the at-will assumption for VA, but I'm pretty sure I didn't read it wrong. I'll keep looking later and post it if I find it.

Thank you all for taking the time to write up what you know.

Oh, one other thing: I have considered the use of leave to shorten the 30 days, but it strikes me as inappropriate. I don't think my company would do the converse to me, and I think if I did work the 30 days, they would credit me my leave balance upon departure.
posted by kalessin at 5:10 AM on May 6, 2006

More than 6 months later: I found out my company has fired two employees without notice for reasons not specified in the agreement, and that many ex-colleagues have left with 1-2 weeks' notice, apparently without any reprisal, so if I need to, I will probably follow suit, though if I can I will get future employers to respect the 30 days' notice clause, which would be fortunate anyhow because I'd like my next job to involve relocation and I own a house, so 30 days' notice seems like, to me, the minimum time I'd need to get the move done anyway (unless I took the time off).
posted by kalessin at 4:31 AM on January 22, 2007