By Doug Taylor, Bean, Kinney, & Korman
It is still the law in Virginia that “You’re fired!” or words to that effect, is all that is needed in the way of advance notice of termination by an employer to an at-will employee. From the employee’s perspective, “I quit!” works equally well as advance termination notice to an at-will employer.
It is still the law in Virginia that “You’re fired!” or words to that effect, is all that is needed in the way of advance notice of termination by an employer to an at-will employee. From the employee’s perspective, “I quit!” works equally well as advance termination notice to an at-will employer.
“Reasonable notice” in the context of at-will employment does not mean that an employee is entitled to advance notice of termination, the Supreme Court of Virginia confirmed last week in Johnston v. William E. Wood & Associates.
You Know About “At-Will” Employment, Right?
At-will employment is a bedrock principle of Virginia’s employment law. An at-will employee is “at liberty to leave his employment for any reason or for no reason.” Likewise, an employer is free to terminate its relationship with an at-will employee “without the need to articulate a reason.” At-will employment has been recognized in Virginia for more than 100 years. In Stonega Coal & Coke Co. v. Louisville & Nashville R.R. Co., the Court decided:
[W]hen an employment contract does not specify a ... duration, ‘either party is ordinarily at liberty to terminate it at will on giving reasonable notice of his intention to do so.’
In the century since Stonega, courts have echoed the phrase “reasonable notice,” but Virginia’s highest court has never decided what “reasonable notice” actually means. In Johnston, the issue was “whether reasonable notice means “advance notice.”
Johnston Claims “Reasonable Notice” Means “Advance Notice”
Brenda Johnston, a seventeen year at-will employee of William E. Wood & Associates, sued for wrongful discharge when Wood terminated her employment without advance notice. Her claim? Reasonable notice has a “temporal requirement,” i.e., it must be provided at a reasonable time before the termination of employment. Johnston noted that Virginia courts were split on this issue, although a number of them had concluded that “reasonable notice” did not equate to advance notice.
Wood Argues That Notice is Reasonable if It Conveys That Employment Has Ended
Wood claimed that notice “means nothing more than communication of termination by the terminating party.” The concept of at-will employment completely loses its meaning, Wood argued, unless it is interpreted to mean that the employee should be free to walk away from an undesirable job without giving advance notice, just as an employer should not be tethered by an advance notice requirement to an at-will employee it does not want or need.
Wood Has It Right, the Court Concludes
The Court rejected Johnston’s theory that there is an advance notice requirement to “reasonable notice.” Rather, in a Virginia at-will employment relationship, notice is deemed reasonable if it coveys to the other party “that the employment relationship has ended.”
Definitive notice has a tangible benefit for both employees and employers, the Court wrote. Without effective notice that the employment relationship has been terminated, an employee could continue to work, learning only later that she was no longer an employee and would not be paid for time worked. An employer, in contrast, faces the prospect of compensating an employee who no longer works there in the absence of definitive notice.
The Court was concerned that substantial uncertainty in employment relations would result if it adopted Johnston’s advance notice requirement to at-will employment. “Reasonable notice” is not objectively quantifiable. It would vary based on each employment situation, with the effect that:
[E]very employer would have to gauge what is reasonable advance notice under the circumstances, and if the employer guesses wrong, face the prospect of an expensive trial with an uncertain outcome. Conversely, employees could be sued by their employers for failing to provide sufficient advance notice before leaving, thus deterring employees from seeking better prospects elsewhere.
The Takeaway from Johnston
Johnston confirmed that at-will employment remains a fundamental legal doctrine in Virginia; one that does not require either employers or employees to provide advance notice of an intention to end the employment relationship. However, Johnston does not alter fundamental principles of Virginia contract law. Employment agreements or employee policies that graft an advance notice period onto the employment relationship can create enforceable contract rights for both employers and employees and must be honored.
You Know About “At-Will” Employment, Right?
At-will employment is a bedrock principle of Virginia’s employment law. An at-will employee is “at liberty to leave his employment for any reason or for no reason.” Likewise, an employer is free to terminate its relationship with an at-will employee “without the need to articulate a reason.” At-will employment has been recognized in Virginia for more than 100 years. In Stonega Coal & Coke Co. v. Louisville & Nashville R.R. Co., the Court decided:
[W]hen an employment contract does not specify a ... duration, ‘either party is ordinarily at liberty to terminate it at will on giving reasonable notice of his intention to do so.’
In the century since Stonega, courts have echoed the phrase “reasonable notice,” but Virginia’s highest court has never decided what “reasonable notice” actually means. In Johnston, the issue was “whether reasonable notice means “advance notice.”
Johnston Claims “Reasonable Notice” Means “Advance Notice”
Brenda Johnston, a seventeen year at-will employee of William E. Wood & Associates, sued for wrongful discharge when Wood terminated her employment without advance notice. Her claim? Reasonable notice has a “temporal requirement,” i.e., it must be provided at a reasonable time before the termination of employment. Johnston noted that Virginia courts were split on this issue, although a number of them had concluded that “reasonable notice” did not equate to advance notice.
Wood Argues That Notice is Reasonable if It Conveys That Employment Has Ended
Wood claimed that notice “means nothing more than communication of termination by the terminating party.” The concept of at-will employment completely loses its meaning, Wood argued, unless it is interpreted to mean that the employee should be free to walk away from an undesirable job without giving advance notice, just as an employer should not be tethered by an advance notice requirement to an at-will employee it does not want or need.
Wood Has It Right, the Court Concludes
The Court rejected Johnston’s theory that there is an advance notice requirement to “reasonable notice.” Rather, in a Virginia at-will employment relationship, notice is deemed reasonable if it coveys to the other party “that the employment relationship has ended.”
Definitive notice has a tangible benefit for both employees and employers, the Court wrote. Without effective notice that the employment relationship has been terminated, an employee could continue to work, learning only later that she was no longer an employee and would not be paid for time worked. An employer, in contrast, faces the prospect of compensating an employee who no longer works there in the absence of definitive notice.
The Court was concerned that substantial uncertainty in employment relations would result if it adopted Johnston’s advance notice requirement to at-will employment. “Reasonable notice” is not objectively quantifiable. It would vary based on each employment situation, with the effect that:
[E]very employer would have to gauge what is reasonable advance notice under the circumstances, and if the employer guesses wrong, face the prospect of an expensive trial with an uncertain outcome. Conversely, employees could be sued by their employers for failing to provide sufficient advance notice before leaving, thus deterring employees from seeking better prospects elsewhere.
The Takeaway from Johnston
Johnston confirmed that at-will employment remains a fundamental legal doctrine in Virginia; one that does not require either employers or employees to provide advance notice of an intention to end the employment relationship. However, Johnston does not alter fundamental principles of Virginia contract law. Employment agreements or employee policies that graft an advance notice period onto the employment relationship can create enforceable contract rights for both employers and employees and must be honored.
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