Dear Evil HR Lady,
We had an employee we had to put on leave….he decided he was going to file unemployment he assumed he was fired. We never said anything about firing him. So we took him out of our system and the payroll service closed his file etc….two weeks into the new year he got a call from someone who is one of our vendors that does some training for us telling this person to come to work….without company knowledge or approval. So he shows up and works a day. Doesn’t sign in doesn’t check in main office..we don’t find out until end of day..do we have to legally pay him?
Well, you’ve already pegged this as a legal question, which it is and you should consult an attorney. I realize that it may be more expensive to consult an attorney than to just pay the person, but you may be in for a boatload of other problems.
I think your big error is that you put him on leave, but didn’t fire him and didn’t tell him he was fired. The reality is, you can file for unemployment for a temporary lay off, which means that his filing this does not indicate that he resigned either.
Now it’s true that I can’t just do some work and then send you a bill for it and expect payment. (Of course, you certainly can send me payment! Please!) But, it’s also true that if I’m a non-exempt employee and you tell me, “don’t come in on Tuesday,” and I come in anyway and work all day you have to pay me. You can fire me, but first you have to pay me.
Because you never officially told this guy he was fired, you may legally have to pay.
Also, since he didn’t sign in or check in, does he expect to be paid by you guys? Maybe he expects to bill the client directly. Who knows?