Hiring, Discipline and Termination

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The termination interview can affect the likelihood of a lawsuit.  Does the employer offer a severance agreement in exchange for a signed release?  Does an HR manager berate the employee in front of others?
 

California is an “at will” employment state.  This means that absent an agreement to the contrary, an employee can quit work without notice for any reason and an employer can terminate a worker’s employment at any time and for any reason, except not for an impermissible one.

Documenting the Reasons for Termination

Employment law disputes in California often begin over a misunderstanding of why an employer fired a specific worker.  If the employer alleges that it is because the employee was late to work three times and a review of personnel records indicates that a dozen other employees were late to work as often, or more often, the question arises what was the real reason for the termination?

If the employee is a member of a protected class and the reason the employer asserts for the termination is not credible, it is only natural for a jury to believe that an invidious reason drove the termination.

California law, and to a lesser extent federal law, prohibits discrimination in employment on the basis of:

a.    Age
b.    Sex
c.    Disabilities
d.    Race

e.    Sexual Orientation (CA only)
f.     National Origin
g.    Pregnancy
h.    Religion

If the employee a company will terminate falls into one of these groups, it is possible that the stated reason for terminating the employment may be questioned in the future.  Does the employee you seek to terminate belong to a different group with regard to the categories above than other similarly situated employees who are not being fired?

Carefully consider if the reasons listed in your documentation make sense.  If another employee complained about this employee’s conduct, did someone take a report with the date and time of the incident and what happened?  Did the manager recording the incident give the employee to be terminated an opportunity to tell his side of the story?  Are the facts corroborated?

Did the employee violate a written company rule?  Was the employee’s inability to perform the job’s duties objectively measurable and specifically documented?

If the company is terminating the employee for violating a rule, is the rule one that actually exists in an employee handbook or other written form?  Can the employer show that the employee knew about this rule, or at least was informed of the rule?  Does documentation show that the employee violated the rule?  Has any other employee been terminated for violating the same rule?  Does the company fairly and equitably administer sanctions for failing to observe the rule treating all employees the same?

Is the company seeking to terminate an employee for violating a “known” rule, but one that is not written down anywhere?  If yes, the company should call us before proceeding.  It’s wise to have a written set of rules that the company gives to all employees and requires each employee to sign an acknowledgement that he or she received the rules.  However, a new employee in probationary status may generally be terminated immediately for breaking a rule, provided that it is a real, written rule.

Does the company's employment agreement specify that the employment is at will?  Did the employee sign the agreement?  Does the company still have a copy of it?

Managing the Termination Encounter with Dignity

The best way to ensure a smooth termination is to carefully plan the termination meeting.  Managers should respect the employee’s dignity and not engage in disciplinary discussions in the presence of other employees.  The termination meeting should be conducted in private and include at least two company managers – for example the employee’s manager and a Human Resources manager, or other manager to serve as a witness.  Although rare, if the employee becomes upset or uncontrollable at the termination meeting, the value of a second management witness will prove invaluable.

It is best to explain to the employee at the meeting why the company is terminating him and to provide specific reasons while maintaining a calm demeanor.  It is also important to be brief.  Resist the urge to engage in a discussion with the employee regarding whether the company’s performance findings are adequately supported.  A contentious employee may transform a termination meeting into a debate over whether the company ought to terminate his employment.

You are not required to provide the employee with any documentation of the investigation that led to the termination decision.  The company may provide documentation of the investigation to the employee, but this may lead to the employee “second guessing” the employer’s decision.

When to Terminate

Some HR professionals have noticed that terminating an employee on a Friday is less than ideal because distraught employees have no place to go to apply for unemployment benefits, or to apply for a new job.  Giving the employee termination notice during the week allows him to seek new employment and job counseling without stewing over the weekend.

Avoid Discussing the Termination with Other Employees

It’s natural for other employees to ask what happened and why the employee was terminated.  Managers should explain that they must respect the terminated employee’s privacy and cannot discuss the matter.  Even the briefest comment about the reasons for the employee’s termination may give rise to a defamation lawsuit.  When a person makes statements that disparage another person’s business, employment, or profession, courts will often find this to be defamation per se – that is that damages are presumed to have occurred even in the absence of proof.

 
 

Call us at 408.797.0000

Call us at 408.797.0000

Call us for a consultation at 408.797.0000. We offer expert services and proven experience with complex issues that others can overlook.

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