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The following "voluntary quit" rules apply to "at-will" employees:

Q. If an employee notifies an employer of an intention to quit in two weeks and the employer accepts that notification, can the employee retract that quit a few days or a week later?
A. No, not without the employer's agreement. Once an employer has accepted an employee's resignation, the employee may not withdraw that resignation without the employer's agreement. Gannett Publishing Co. v. Maine Employment Security Commission, 317 A.2d 183 (Me. 1974). Of course, an employer may allow an employee to retract a notice of quit, but an employer is not generally required to do so. Also, an employer may rehire a former employee, but an employer is not generally required to do so.
TIP: If an employer receives a notice of quit and decides to accept it, the employer should tell the employee the notice of quit is accepted and document that acceptance. In the absence of a documented acceptance of a resignation, an employee may try to revoke the resignation, or claim that no resignation was ever submitted, or claim that the resignation was never accepted by the employer.

Q. How long in advance can an employee notify an employer of an intention to quit? Can an employee notify an employer one or two or three months in advance of a quit, and is the employer required to keep the employee employed for that whole time?
A. There are no specific legal rules about the "maximum time" that an employee can use for a notice of quit. The real key to the analysis of this type of situation is the employer's response to the notice. If the employer accepts the notice as given by the employee, then neither side can unilaterally change that notice thereafter. That means that the employee cannot unilaterally withdraw the notice of quit, and the employer cannot discharge the employee (without unemployment compensation liability) simply because the employer has reconsidered allowing the employee to continue to work for the employer. If the employer does not accept the notice as given by the employee, then the employer may decide how long to keep the employee employed, but if the employer discharges the employee before the employee's announced quit date, the discharge may be viewed as a discharge not for misconduct (in which case the employer would be liable for unemployment compensation benefits).

Q. When can an employer discharge an employee during the notice period without incurring unemployment compensation liability?
A. When the employee engages in willful misconduct or when the employee initiates an action inconsistent with the employee's continued employment. For example, in the case of Smart v. Maine Unemployment Insurance Commission, 1997 ME 31, -- A.2d -- (February 28, 1997), an employee gave a two-week notice of quit, worked the first week without any problems, and was then scheduled to work his normal schedule the second week; the employee then refused to work the two busiest (and therefore most important) days during his last week of work, so the employer terminated him. The Court affirmed the Unemployment Insurance Commission's ruling that the employee had voluntarily quit his job, that the employer had accepted the employee's notice of quit, and that the employer's termination of the employee, a week before the original effective date of the employee's resignation, in response to the employee's refusal to work "did not change the legal significance of [the employee's] earlier resignation." The Court said that the employer's decision was a reasonable and fair response to the employee's conduct. In effect, the employee "accelerated" his own quit by his refusal to perform important work the last week. The rule from the Smart case may be stated as this: A clear refusal or failure of an employee to perform an essential function of the employee's job during the resignation notice period amounts to an immediate quit and warrants termination of the employee's employment.
TIP: When an employer accepts a resignation substantially in advance of its effective date, the employer should document that the employee remains an employee-at-will subject to all of the employer's policies and rules (i.e., that the employer is not promising continued employment until the effective date of the resignation; who knows what might happen after an employee submits a resignation?). For more information about Maine employment-at-will law, see the Lawrence C. Winger, Esq. article Maine Wrongful Discharge Law Update.

Q. The answer to the first question states that an employer is "not generally required" to allow an employee to retract a resignation. May an employer ever be required to allow or accept such a retraction?
A. Yes, depending on the employer's past practice and whether a refusal to allow a retraction would be a discriminatory act. For example, if an employer has a past practice of allowing retractions of resignations and the employer has previously allowed three white employees to retract their resignations, then the employer must allow a similarly-situated black employee to do so also; to treat the similarly-situated black employee less favorably would be a prima facie act of race discrimination. Of course, the same principle of non-discrimination would apply to any employee in a protected class (age, sex, disability, union activist, etc.) who sought to retract a resignation. The key issue in such a matter would be whether the employee who resigned and was not allowed to retract the resignation was "similarly-situated" to the employees who previously were allowed to retract their resignations. For example, if the employees who were previously allowed to retract their resignations were good workers not in any disciplinary trouble at the times of their retractions, then the employer's past practice would not apply to an employee who is a poor worker and who resigns while under investigation for serious misconduct.

DISCLAIMER: All information is provided for educational or promotional purposes only and not as legal advice on a particular matter. The information is provided AS IS with no warranties of accuracy, completeness, merchantability, or fitness for a particular purpose. Providing this information DOES NOT create an attorney-client relationship between Lawrence C. Winger, Esq. and the reader. All information is Copyright (c) Lawrence C. Winger, Esq. 2000 All Rights Reserved.

Dated: February, 2000
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