In Part 1 of Elon Musk’s “what not to do” employment law moments, I wrote about the possible legal risks of a disparate treatment or hostile work environment employment discrimination claim that can arise under the ADA or Title VII when an employer makes disparaging and insensitive comments about an employee’s protected characteristics. In Musk’s case, he recently engaged in some twitter exchanges that ended with him making ugly comments about a disabled Twitter employee. 

The Twitter fiasco began innocuously enough when Haraldur Thorleifsson sent a tweet to Musk looking to clarify whether he had been included in a group of about 200 Twitter employees who were laid off by the company at the end of February 2023. Thorleifsson, who had been a Twitter product designer for about two years, wrote that the Twitter had cut access to his work computer nine days prior and its HR director had not been able to confirm whether or not he was actually still employed with the company. After the ugly exchanges with Musk, Thorleifsson was finally advised by Twitter HR that he had in fact been laid off by the Company.

In part 2 of “what not to do” employment law moments, we’ll briefly consider the reasons why it is a bad idea for employers, as Twitter did here, to fail to give clear notice of termination to their employees. In short, you give the notice to protect your company from employment-related claims by an individual who still may be considered to be in your employ. 

In Virginia, one of the states in which I represent management in employment-related matters, at-will employment has been a bedrock principal of law for more than 100 years. At-will employment is a cornerstone concept in nearly all U.S. states. In an at-will employment relationship, either party is ordinarily at liberty to terminate it at will, with reasonable notice of the party’s intention to do so. Notice is deemed reasonable in Virginia simply if it conveys to the other party “that the employment relationship has ended.”

Why is clear notice of termination so important? According to one Virginia court, because it has tangible benefits for both employees and employers. Without effective notice that the employment relationship has been terminated, an employee could continue to work, learning only later that he or she was no longer an employee and, thus, would not be paid for time worked. An employer, on the other hand, faces the prospect of having to compensate an employee whom the employer thought was no longer on the payroll, in the absence of definitive notice of termination from the employee.

Steer clear of Twitter’s “what not to do” moment example in failing to provide its employee, Thorleifsson, with timely notice that the company had laid him off. It can land your company in the middle of a host of unintended legal concerns. The biggest concern? Until notified of termination, the employee may be looked at as still on your payroll, with all the rights and remedies available under federal, state and local employment laws, including:

• Wage and hour claims – While the federal Fair Labor Standards Act (FLSA) does not require that an employer give notice to an employee prior to a termination or layoff, it does require employers to pay for all work an employee has performed for the employer. Absent proper notice of termination, an employer could potentially be on the hook for wages for work performed by an employee before receiving a notice of termination, and all the statutory damages, including attorneys’ fees, that go along with a FLSA violation. 

• Wage Payment Claims — Many states have wage payment and collection laws that could also be implicated in a scenario in which the employer fails to provide adequate notice of termination to the employee if the employer’s payment to the employee of a final paycheck is delayed beyond the statutory wage payment due date. A successful wage payment claim can result in damages similar to those available under the FLSA.

A layoff or termination can also trigger other employer notice requirements to employees under the WARN Act, and state mini-WARN Acts, COBRA, and collective bargaining agreements, in applicable workplaces.

The take away for employers from Musk’s Twitter teaching moment with his employee Thorleifsson is clear: Spend more time with your HR director keeping tabs on all the important points, like proper notice to the employees who are being subjected to a lay-off and less time on Twitter sending tweets that are dismissive of your employees with a disability. 

If you have questions about your policies and practices to ensure compliance with the ADA, please contact Doug Taylor, at rdougtaylor@beankinney.com or (703) 525-4000.

This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the author and are not necessarily the views of any client.