An employee’s termination date is generally the date that a statute of limitations begins to run on a wrongful termination case. A case can be dismissed where an employee does not file within the statute of limitations. Where a former employee has blown the statute of limitations, you will often find a lot of creative arguments for why the statute of limitations does not begin to run on the date of termination. A big argument used by plaintiffs in this situation is the termination date cited by the company was not the actual termination date.
Here’s a real life example. You guess when you think the termination date is:
- Employee’s last day actually worked was August 20, 2009;
- Employee’s last paycheck reflected all hours worked up to August 20, 2009;
- Employee’s job history report show that he was terminated on August 20, 2009;
- Employee is replaced by a new employee on August 25, 2009;
- Employee, apparently never having been told he was fired, shows up for work on August 28, 2009 and is then “fired” by the manager and sent home.
If you think the actual termination date is when the employee last worked, then you would be in agreement with a New Jersey trial judge. If you think that the termination date could have been August 28, 2009, then you would be in the distinguished company of a panel of two New Jersey appellate judges. These are the facts in Rabb v Children’s Place.
In that case, the Appellate Division reversed a trial court’s grant of summary judgment based upon the plaintiff’s failure to file within the statute of limitations. Although the general rule in New Jersey is that the statute of limitations runs from the last date actually worked and not when the employee is notified of the termination, the court in Rabb found there was enough of a factual dispute as to the actual date of termination to reverse the grant of summary judgment.
Obviously, the easiest way to avoid this is to send a termination letter to the employee who has abandoned his or her job.
Which brings me to why I am writing this post months after the initial decision. In my job I do a lot of counseling to employers on employee issues such as terminations. In the last few weeks, a couple of those calls have involved situations similar to Rabb where the employee slipped through the cracks and was not notified of the termination due to job abandonment. Thankfully, in those cases, the situation was picked up before the employees suddenly woke up from their extended vacation and advised that they wanted to come back to work.
Just another reason to make sure that you are tracking employee absences to stay on top of these types of situations.