5.2 Providing Employees Reasonable Notice of Termination

• Library: Virginia Employment Practices and Forms (Virginia CLE) (2015 Ed.)

5.2 PROVIDING EMPLOYEES REASONABLE NOTICE OF TERMINATION 1

5.201 Reasonable Notice Not Defined. An issue that remains unresolved in Virginia law is whether an employer must give an employee notice of termination and, if so, how much notice must be given. The Virginia Supreme Court has defined "employment at-will" as a relationship that may be ended by either party "upon giving the other party reasonable notice." ² Unfortunately, "reasonable notice" has yet to be defined by the Virginia Supreme Court, and this lack of clarity has led counsel in numerous cases to plead a separate cause of action for damages suffered by the former employee because no "reasonable notice" allegedly was given before the employee's involuntary separation. Courts have responded to this argument with widely varying results.

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5.202 Courts That Have Required Reasonable Notice.

A. In General. Several courts have construed "reasonable notice" to require that an employee be given some notice before termination and considered the issue of how much notice is "reasonable" to be a question for the jury.

B. Braunfeld v. Forest Home Systems. ³ The court denied the defendant's motion to set aside the judgment and upheld an earlier decision to submit to the jury the issue of what period constitutes reasonable notice.

C. Slade v. Central Fidelity Bank. ⁴ The court found that failure to give any notice of termination to an employee of 24 years was not reasonable.

D. Laudenslager v. Loral. ⁵ "The [c]ourt interprets this language [from Miller v. SEVAMP, Inc.] as defining an implied obligation requiring each party to an employment relationship to give the other reasonable notice of termination unless there is an agreement or understanding to the contrary. Failure to give such notice is actionable as a breach of an implied contract."

E. Tingle v. Chasen's Business Interiors, Inc. ⁶ The court overruled a demurrer to plaintiff's claim of failure to give reasonable notice. "The reasonableness and length of the notice required of the employer will depend on the cause of the employee's discharge."

F. Wells v. G.R. Associates, Inc. ⁷ The court held that "an employer is obligated to give an at-will employee notice before terminating the employee. . . . What is 'reasonable' is a question for the jury."

G. Layton v. MMM Design Group. ⁸ The court held that "reasonable notice" is required under Virginia law.

H. Mercado v. Lynnhaven Lincoln-Mercury, Inc. ⁹ Relying principally on Braunfeld, the court denied the employer's motion to dismiss the

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former employee's reasonable notice claim, finding instead that "a determination of whether notice was 'reasonable' should be left to the jury."

5.203 Courts That Have Refused to Require Reasonable Notice.

A. In General. Other courts have held that the Virginia Supreme Court's use of the phrase "reasonable...