b'With the Great Resignation,Contractual Notice Provisions: Comes Great Employer Responsibility Why Timing Is Everything Megan J. Renslow For example, an employer may not withhold a former employeesJeffrey A. Wieland What Type of Notice Is Required? 612-877-5450|Megan.Renslow@lawmoss.com final paycheck due to unreturned equipment. Additionally, unless612-877-5261|Jeff.Wieland@lawmoss.com The form of notice varies depending on the terms of the contract. LawMoss.com/people-megan-j-renslow the employer and employee enter into a written agreement thatLawMoss.com/people-jeffrey-a-wieland Many contracts require notice to be provided formally or in Megan is a member of our Litigation team. She assists businesses andsays otherwise, an employer may not deduct the cost of thewriting, but what constitutes in writing can vary. Submission individuals with commercial litigation disputes. equipment from the employees final paycheck.Jeff practices in Construction Law and Litigation. Licensed in state and federal court in Minnesota and North Dakota, he representsvia certified mail may be required. Email is not always sufficient contractors, subcontractors, suppliers, and owners. for written notice. Discussion of a claim with an owner or Approximately 47 million people voluntarily left their jobsIn some situations, it may be possible for the employer to pursue in 2021. These numbers have continued into 2022, with anthe stolen equipment in conciliation court or district court. Angeneral contractor may not satisfy the notice provisions in these average of 4 million workers quitting their jobs each month.employer may also be able to report the employees actions asElise R. Radaj circumstances. Certain contracts may require specific information This unprecedented exodus from the workforce, aptly namedtheft. Employers should review their handbooks to establish612-877-5312|Elise.Radaj@lawmoss.com to be submitted with a claim, such as the amount of the claim.the Great Resignation, raises numerous legal obligationsprotocols regarding the return of company property afterLawMoss.com/people-elise-r-radaj This is yet another potential trap in the claim submission process. for employers.termination or resignation.Elise practices in Construction Law and Litigation. She advises owners,Judges and arbitrators can strictly enforce notice provisions with general contractors, and subcontractors on matters such as payment,harsh results. A contractor may be denied payment for a legitimate The Final PaycheckAssigning Additional Duties to Remainingconstruction defect, and termination disputes.changed condition, of which the owner was fully aware, simply Employers must promptly pay former employees their lastEmployees because notice was not provided in the proper form.paycheck. In Minnesota, employees who quit or resign fromChanges happen on every construction project. When these Carrying on with business as usual may prove difficult if achanges occur, contractual notice provisions require contractors their employment are due all earned and unpaid wages andcompany is suddenly short-staffed. However, when delegatingWho Receives Notice? commissions on the next regularly scheduled payday followingto take affirmative steps topreserve a claim for additional time new duties to remaining employees, employers should be mindfulor money related to the project. Contractual notice provisionsTo whom notice must be provided varies depending on the the employees final day of employment.of each employees exempt or non-exempt status.can vary greatly, and failure to strictly comply with a contractualcontract. For example, in an AIA contract, notice may need However, if an employees last day of employment is withinnotice provision can result in a waiver of claims and nonpayment.to be provided to the owner, the architect, and the initial Exempt employees may lose their exempt status if they spenddecision-maker, as these individuals are defined in the contract. five calendar days of the next regularly scheduled payday, thetoo much time performing duties normally assigned toNotice provisions are intended to give owners the opportunity to employer may delay full payment until the second regularlydecide how to cost-effectively deal with unplanned conditions onOther contracts may only require submission to the owner or non-exempt workers. Courts typically examine the primary dutygeneral contractor. The contract should outline the submission scheduled payday. Importantly, if the employer elects to deferof an employee when determining whether the employee is trulya project, but all too frequently they become a technical defense against payment to contractors. process, including the name of the individual or individuals to payment past the first regularly scheduled payday, the employeeexempt. For example, if an exempt employee performs primarilywhom notice must be provided.must nevertheless receive full payment within 20 calendar daysnon-managerial tasks, then a court may determine the employeeThere are various timing, form, and substance considerations to following the final day of employment. Employers should beis more properly classified as non-exempt. If an employee loses herbe aware of with notice provisions: Conclusion mindful of this 20-day window if the second regularly scheduledexempt status, this creates additional wage and hour obligationsThe time to become familiar with the contractual notice provisions payday falls outside of it.for the employer. For this reason, employers must be careful whenHow Soon Must Notice Be Provided?is not after a claim ariseswaiting too long to provide notice can My Employee Still Has Company Equipment,assigning non-exempt work to an exempt employee.Understanding the timing of when notice has to be provided islead to waiver of a claim. Consider having your attorney review Now What?Conclusionthe first step in preserving a claim. Some contracts require noticeyour contracts before execution to propose amendments to the be provided in as short as a 48-hour window after the eventnotice provisions if they are unduly restrictive or impose obligations With more employees working from home, there is a greaterWith knowledge of the potential legal issues implicated byimpacting the project occurs. Other contracts allow for 30-daythat cannot be followed in the field. Being familiar with notice likelihood former employees received company laptops,the Great Resignation, employers can better prepare for thisnotice. The AIA A201 standard form contract strikes a balanceprovisions at the beginning of the construction season is a best cellphones, or other equipment necessary for remote work. If annew reality. Please contact your employment law attorney atand requires notice of a claim to be provided within 21 days ofpractice that helps contractors get paid fairly for their work.employee quits and retains company property, employers shouldMoss & Barnett for guidance specific to your workplace.the event giving rise to the claim or discovery of the claim. Some avoid self-help remedies.contracts, particularly on road projects, have multiple levels ofIf you have questions related to contractual notice provisions, 2 notice requirements. please contact your Moss & Barnett attorney. 3'