If you’ve never seen CBS’ The Late Show with Stephen Colbert, now may be a perfect time to start.
The popular comedian, who took over from David Letterman in 2015, first cut his teeth on his own show playing a snarky right-wing political commentator for laughs. Now as himself, Colbert had the freedom to be his left-of-centre self, and used his show to openly mock the politics that his old persona used to take seriously.
His comedic style, combined with his skills as a thoughtful and inquisitive interviewer, propelled him to the top of the late-night ratings. Thus, it was shocking when Colbert announced in July that not only was he losing his job, but the CBS network decided to axe the late-night format entirely as of May 2026.
The network claimed the move was a financial decision, but critics argue that Colbert’s recent criticisms of his employer may be the root cause. The network has been in hot water after paying to settle a lawsuit filed by President Trump, which comes on the heels of their parent company’s proposed merger – a decision that Colbert has mocked repeatedly. Either way, the network is quickly learning that leaving a clever comedian in his job for 10 months after getting fired may well have been a costly move indeed.
Welcome to the dangerous world of working notice.
What is Working Notice?
In employment law when you need to end someone’s employment without cause, you effectively have two options”
The first, and most common, is pay in lieu of notice. In this circumstance, you notify the employee that while their actual employment is ending that day, you will continue to pay them for a set period of time as though they were still with you.
In Ontario, the amount of pay in lieu of notice owing to the employee upon termination is, at a minimum, set out by the Employment Standards Act, 2000, or could be a higher amount of notice as agreed upon in a written employment agreement. If that employment agreement is out of date, or there is no written agreement, that employee may be eligible for what is called reasonable notice. This is typically a larger amount of notice that is dependent on the employee’s circumstances such as their age, their role, their tenure with the company, and the current job market.
There is, however, another option called working notice. The principles remain the same, but instead of ending a person’s work early (i.e. the day you had them their notice of termination) and paying them out for weeks or months, you instead keep them actively employed through that notice period.
In this scenario, the employee receives written notice that as of X date, they will no longer be employed with the company, but are expected to keep working as per usual until then. They can, and are encouraged to, apply for and interview for new work. Beyond that, though, not much changes! They are still expected to report to work, still expected to fulfill their duties, and still expected to remain loyal to the best interests of their employer until the effective end date of their employment.
So, when does working notice actually work, and when is it a very clear problem?
Why is Working Notice Risky?
Let’s say you’re a doctor or retail business owner and are planning on closing your practice/small business and retiring in a year. You have loyal support staff who have been with you for decades and have been sad to see this day coming. In these cases, working notice while you wind down the business may be the ideal solution.
If you are planning on selling or closing your business, and you’ve been vocal about these plans to your longstanding employees, working notice keeps them with you to help wind down operations. It may not be entirely sufficient – you may need to pay a lump sum after to provide the correct notice period and/or severance owing. However, working notice lets you keep great employees in place at a time when you need them most.
When does working notice present a problem? Well, if you’ve ever needed to live with a former partner for an extended time after your relationship has ended badly, you’ll know.
The truth is that some employees are understandably upset at the loss of their job and may not take the news well. Removing them from the workplace swiftly may not appease them immediately, but it can keep them from further poisoning the waters. Disgruntled employees who do not leave immediately have the potential to create a seriously toxic work environment for their colleagues and can effectively poison the waters for their colleagues who remain.
The other reality is that these employees, if still in their roles, may have access to extensive confidential information including customer lists, sales strategies, technology, industry forecasting, etc. Even if you have certain safeguards in place, these employees may still have the time to take this information off-site and use it for improper or competitive purposes.
Not all employees will behave badly, of course. Many recognize that they are expected to conduct themselves honourably and professionally and will continue to do so until their final day. However, the risk of bad behaviour is a real possibility and one that must be contemplated when an employer decides to offer working notice vs. providing pay in lieu of continued active employment.
Final Thoughts
The Stephen Colbert scenario is a real-time example of a very real risk of working notice. While the comedian has never been ‘muzzled’ about his political commentary, he has become more brazen since the announcement in his on-air criticisms about his employer. For an ordinary employee, such free speech would likely yield discipline, so it will be curious to see how Colbert’s last few months on the show play out.
Terminating employees is tricky business, and any decisions should be made delicately and based on sound advice. We regularly advise employers throughout the Cambridge, Kitchener and Waterloo regions on termination strategy, exit packages, negotiations, and represent them through wrongful dismissal litigation if necessary. Let us help you do it right. Contact us today to arrange a consultation.