In a Texas unemployment benefit proceeding, the employee usually bears the burden of establishing an entitlement to benefits when the employee resigns. The employer bears the burden to show disqualification for benefits when the employer initiates the termination. However, when an employee offers more than two weeks’ notice of intent to resign and the employer accepts the notice of resignation immediately, the employer then shoulders the burden to show that when it accepts the resignation, the employer had reasons to terminate the employee at that time that disqualified the employee from unemployment benefits (i.e., misconduct connected with the work).
Consequently, if an employee offers a company more than two weeks’ notice of intent to resign and the employer desires to avoid being charged for the employee’s unemployment benefits, the employer has three options to avoid having the resignation treated as a termination. First, the employer can accept the resignation immediately and pay wages in lieu of notice (i.e., paying wages for the entire notice period), thereby rendering the action a resignation. Second, the employer can wait until only two weeks remain in the notice period and then accept the resignation. Most unemployment hearing examiners will treat this as a resignation placing the burden on the departing employee to show eligibility for unemployment. Finally, the employer could allow the employee to work out the full notice period. In each of these cases, a notice of resignation greater than two weeks is likely to still be treated as a resignation rather than a discharge.