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Termination in California

An employee in a CA organization has not been performing well for a while. He misses deadlines, turns in reports with inaccurate information, does not follow protocol, comes in late, takes time off without prior approval, etc. His former supervisor had verbal counseled him and followed up with emails a number of times. He was not written up despite the Director instructing his supervisor to do so. That supervisor is no longer employed. His new supervisor has identified additional performance issues. Keeping this employee on staff is harming the program. What is the proper way to terminate the employee?

California, like most states, assumes all employees are at-will unless otherwise stated in an employment agreement. At-will employment means that either the employer or employee can terminate the relationship at any time with or without cause for any lawful reason.

Disciplinary actions including terminations should be based on legitimate, non-discriminatory business related reasons. Employees may not be terminated based on sex, religion, race, age, national origin, sexual orientation, marital status, disability, or pregnancy. Additionally, employers may not terminate employees who assert their rights under state or federal labor laws, file a claim against the company for violating state or federal labor laws, or refuse to violate a law.

Employers are encouraged to adopt a proactive approach to dealing with employee performance issues in an effort to reduce the risk of wrongful termination claims. It’s recommended to implement and follow logical, consistent policies for disciplinary actions including terminations.

Progressive discipline, also often called a performance improvement plan, provides a graduated range of responses to employee performance issues. Corrective actions vary based on the severity of the issue or violation. Generally, the process includes verbal warning, written warning, final warning/suspension and, ultimately, termination. With any corrective action it’s important to inform the employee of his wrongdoing, explain company expectations or policies and afford the employee the opportunity to rectify the issue. Doing so ensures that any employee who refuses to follow company policy or is unwilling to adjust performance issues lacks legal ammunition to file a wrongful termination claim. Additionally, implementing an objective, consistent disciplinary process fosters a fair, respectful work environment.

It appears that there are past performance issues with the employee in question; however, he hasn’t been formally written up. It’s recommended for the new supervisor to meet with the employee to discuss both the previous and current performance issues as well as clearly identify what is expected of the employee in order to improve his performance. Disciplinary measures work best when the employee is included in the improvement plan. So, engage the employee in discussion regarding what he thinks he needs to do to in order to improve his performance. Document the agreed upon improvement measures. Depending upon the severity of the issues and their impact on the business, the employee could be warned that future similar performance issues will result in termination or he could be offered one last final written warning. If the employee’s poor performance continues, termination would be warranted.

If termination ultimately ensues, remember to clearly document the specific issues that led up to the termination. It’s best practice to meet with the employee in person. Inform him of the continued concerns regarding his performance and his inability to meet company expectations; thus, his employment is terminated. Provide a letter indicating the employment relationship has ended. The letter doesn’t have to state the reason for the termination. However, if you decide to include the reasoning, be truthful and concise.

Keep in mind that in California an employee who is discharged must be paid all of his or her wages, including accrued vacation, immediately at the time of termination.

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This entry was posted on Saturday, August 2nd, 2014 at 3:27 pm and is filed under
Performance Management, Termination.
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