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Illinois Employers Should Not Be Fooled by the "Two Weeks' Notice Myth"

July 2014
By: Nancy E. Joerg, Esq.

A frequent call that we receive at our St. Charles, Illinois office is about whether or not two-weeks' notice is required in Illinois for either the employee to quit their job or for the employer to terminate the employee.

EMPLOYMENT-AT-WILL: Illinois is an " employment at will state," meaning that an employer or employee can terminate the relationship AT ANY TIME, without any reason or cause, with or without notice.

As most readers know, the employer, however, cannot terminate an employee based on race, color, religion, sex, national origin/ancestry, age, order of protection status, marital status, sexual orientation, military status, and physical and mental disability. However, notice is not required in Illinois by either party based on the doctrine of "employment at will."

If an Illinois employer chooses to have a provision in the Employee Handbook stating that the employer will give two weeks' notice prior to termination, then of course the employer is bound by its own policies. But, such a two weeks' notice policy would be voluntary on the part of the employer.

Many employees incorrectly believe that employers are required to give them two weeks' notice upon termination. This is simply not true.

Other employees believe that employers must tell them the reason they are terminating the employee. This also is not true.

Under the doctrine of employment at will, Illinois employers may terminate employees without any stated reason or cause, provided there is no contract to the contrary.

DON'T ACCELERATE EMPLOYEE'S DATE OF LEAVING: If an employee hands in his/her resignation to the employer and the employee fixes his/her planned date of resignation two weeks in advance, for example, the employer should NOT accelerate the employee's date of leaving. This is because the Illinois Department of Employment Security (IDES) will consider an employee discharged by the employer if the employer accelerates the employee's planned date of leaving.

If the employee applies for unemployment insurance benefits from the IDES, and the employer protests stating that the employee resigned voluntarily (and therefore shouldn't get unemployment insurance benefits), the employee can come back with a winning argument that the employee gave a two weeks' notice of resignation, but the employer accelerated it to an earlier date. Therefore, according to the IDES, the employee was terminated and should get unemployment insurance benefits. This is truly a dangerous trap for the unwary Illinois employer.

If an employee gives a two weeks' notice upon resigning a job, and the employer does not want that employee to be on the premises, then the employer should simply continue the employee's salary for the two weeks remaining in the employee's employment (and have the employee work from home "on call"). In this way, the employee will be blocked from getting unemployment insurance benefits because they voluntarily quit their job. Employers should only accelerate the date of the employee's leaving employment with the company if the employer has no plans of protesting the eventual unemployment insurance claim.

For assistance with IDES benefits claims, audits, hearings, and independent contractor agreements, contact Attorney Nancy E. Joerg, who enjoys a nationwide reputation in working with companies who use Independent Contractors of all types. Nancy Joerg can be reached at Wessels Sherman's St. Charles, Illinois office: 630-377-1554 or email her at  najoerg@wesselssherman.com.