“If I give notice, but am told ‘leave now,’ do I get paid?”

Question: I was given documentation that said I had only 24 hours to make a decision: go through an “Action Plan” and face being fired if it was not successful, or instead resign. I decided to resign. 

I submitted a resignation that clearly stated it was “involuntary” considering the circumstances, and that I would leave in four weeks. I was then informed that the company does not want me to work for the four weeks, and they will not pay me for that time, either.

No where in the documentation did it say that the resignation had to be immediate. I think I am entitled to the four weeks pay, since they will not allow me to work for the four weeks.

This is a “right to work” state. Can you advise? Thank you.

 Sioux Falls, South Dakota

Answer: Dear Clara:   

Your question is a common question with an uncommon twist. I think you may be entitled to collect your four weeks pay. At the least, I think you should try.   

a. First, as an “at will” employee, either employee or employer can decide when the relation ends. As frequent readers of our SkloverWorkingWisdom blog know, unless you have some kind of employment contract, the employment relation is “at will,” which means both the employer or the employee have the right to say, “It is over; good bye” effective any time they wish. This question comes up a lot, and usually employees have no good argument to claim they are owed payment for the time they intended to be their “notice period.”

b. Second, however, you seem to  be right: your employer gave you the choice to stay or leave, but did not say when you had to leave, and so impliedly left that detail up to you. I think that, in your case, a “wrinkle” exists: you were given the choice of remaining on the “Action Plan” (and probably later being fired if you did not successfully complete it) or resigning. However, the documentation given to you did not say when your resignation needed to be effective. In this instance, I think you have a good argument that the “notice period” was up to you to choose, which you did: four weeks.

If your employer did not accept your resignation on four weeks notice, then they should have given you the other option offered: kept you on as an employee, under an “Action Plan.” They did not do that. Thus, they seem to have violated their own offer to you.  

c. Third, therefore, while most employees don’t have a right to get paid the four weeks, you do have a pretty good argument it is due you. It’s for this reason that your case seems to be different than most. This is a good illustration of how a general rule of law that applies to most situations, may not apply to your situation because of one single significant fact. 
d. Fourth, I suggest you consider writing to the company CEO, reminding him or her that you have a right to file a State Labor Department Claim for Unpaid Wages, or Small Claims Court demand, for the four weeks pay. With these things in mind, I suggest you write a letter to your company’s CEO requesting the payment within ten days. In that letter I recommend you remind him or her of the facts I’ve noted above, and also that you are aware of your right to file a State Labor Wage and Hour Division Claim for Unpaid Wages, or file a Small Claims Court complaint, as well. [The South Dakota Wage and Hour Division form EForm 1655 can be obtained from the agency by calling them at (605) 773-3682.] 

If you’d like to obtain a Model Letter for Demanding Unpaid Compensation that you can adapt to your own facts, simply [click here].

My own sense is that you have nothing to lose, and everything to gain, in seeking what you are due. I hope this is helpful, I hope you will stand up for yourself, and I hope very much that you are successful.

We would love to hear how you do. Good luck!

Al Sklover

© 2011 Alan L. Sklover, All Rights Reserved.

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